Howe v. Carpenter

• Decision Date: 01 January 1880
• Citation: 49 Wis. 697,6 N.W. 357
• Parties: HOWE v. CARPENTER.
• Court: Wisconsin Supreme Court

49 Wis. 697

6 N.W. 357

HOWE

v.CARPENTER.

Supreme Court of Wisconsin.

Filed ______, 1880.

Appeal from circuit court, Eau Claire county.

Meggett & Teall, for respondent.

Campbell & Erwin and L. M. Vilas, for appellant.

TAYLOR, J.

The respondent recovered a judgment in the court below for the sum of $420.06, being three times $140.02, which the respondent claimed to have paid the appellant as usurious interest upon a loan of money theretofore made by the respondent from said appellant. The evidence establishes the following facts: That on the third day of January, 1878, the respondent borrowed of the appellant the sum of $360, and previous to that date he had borrowed an amount which, with the interest added to the sum of $360, made in all the sum of $463.69, and that, to secure the payment of this sum, with interest at 10 per cent., the respondent executed and delivered to the appellant a warranty deed of his farm, containing 160 acres of land, the appellant giving him at the same time a bond for a deed of said land, conditioned that upon the payment of $463.69, one-half in the succeeding fall, and the other half in one year from the date thereof, with interest at 10 per cent., the appellant would convey said farm to the respondent; that at the time such loan was made, and the deed and the bond executed, the respondent also gave to the appellant his two promissory notes--one for $62.75, due February 3, 1879, with interest at 10 per cent., and one for $77.27, due 10 months after date, with interest at 10 per cent.; and that these notes were given for usurious interest on the said sum of $463.69, which the respondent had borrowed of the appellant, and the payment of which he had secured by the deed of his farm.

The evidence further shows that the respondent never, in fact, paid in money any part of the $463.69, or of the two usurious notes; that the farm which the respondent conveyed to the appellant to secure the payment of said $463.69 was, at the date of such conveyance, encumbered by mortgages and judgments which were previous liens, and which, on the twenty-fifth day of January, 1879, when the respondent claims he sold said farm absolutely to the appellant, amounted to about the sum of $3,120. In addition to this sum there were the unpaid taxes of 1877 and 1878, amounting to the sum of $64.12, making the encumbrances on the farm, January 25, 1879, about $3,184, over and above what was due the appellant upon the loan of $463.69, which, with the interest added, amounted at that date to $512.21; making the whole amount of the encumbrances on the farm, January 25, 1879, $3,696.21, or nearly that sum, without including the amount of the two usurious notes for $140 and interest.

The evidence further shows that on the twenty-fifth day of January, 1879, the respondent agreed to surrender all his right to the farm to the appellant, in consideration that the appellant would obligate himself to pay all the previous encumbrances thereon, and save him harmless as to all such encumbrances, and release the respondent from the payment of the said sum of $463.69 and interest, and surrender to the respondent the two usurious notes above mentioned; and that, in pursuance of this agreement, the appellant gave to the respondent his contract, under seal, to pay all said encumbrances, and the duplicate bonds for a deed of the farm, from the appellant to the respondent, were surrendered and destroyed by the parties. The two usurious notes were also surrendered to the respondent, and the possession of the farm was thereupon delivered to the appellant, who has ever since remained in possession thereof. This last transaction between the parties is relied upon by the respondent to show that he has paid the two usurious notes, for which he claims to recover treble the amount thereof in this action.

There is a disp ute between the appellant and respondent as to what the nature of this final transaction was. The respondent claims that he sold the farm to the appellant at a price named, $3,733, and that this sum was paid by the respondent assuming the payment of the encumbrances releasing him from the payment of the said sum of $463.69, and the interest, and from the payment of these usurious notes, and that the encumbrances, with the amount due on the loan of $463.69, and the usurious notes, amounted to said sum of $3,733. The appellant claims that there was no price set upon the farm, but that the respondent, having declared himself unable to pay off the encumbrances, proposed that he should take the place and assume the payment of the encumbrances, and release the appellant from his bond, and that nothing was said about the payment of the usurious notes. Under the instructions of the court the jury must have found that the transaction was as stated by the respondent, and as there is evidence to support their finding it is conclusive upon this appeal. This is the view of the case taken by the learned counsel for the appellant, and, admitting that the transaction was as claimed by the respondent, he insists that it does not show a payment of the usurious notes by the respondent, either in money or land, and that the action cannot, therefore, be maintained. The action is brought upon section 1691, Rev. St. 1878, which reads as follows:

“Every person who, for any such loan or forbearance, shall have paid or delivered any greater sum or value than is above allowed to be received, may, by himself or his personal representative, recover in an action against the person who shall have taken or received the same, or his personal representative, treble the amount of money so paid, or value delivered, above the rate aforesaid, if such action shall be brought within one year after such payment or delivery.”

It is insisted by the respondent that he sold his farm to the appellant, and paid these usurions notes by allowing the appellant credit for the amount of the same as a part of the purchase price agreed to be paid therefor by him. The learned counsel for the appellant claims that as the action given by the statute is penal in its nature, the statute should receive a...