Parker v. Maxwell

• Decision Date: 14 December 1892
• Citation: 51 Minn. 523
• Parties: JOHN PARKER <I>vs.</I> H. C. MAXWELL.
• Court: Minnesota Supreme Court

Page 523

51 Minn. 523

JOHN PARKER vs. H. C. MAXWELL.

Supreme Court of Minnesota.

Submitted on briefs November 10, 1892.

Decided December 14, 1892.

Appeal by defendant H. C. Maxwell, from an order of the District Court of Swift County, Powers, J., made April 22, 1892, refusing a new trial.

The plaintiff, John Parker, on November 7, 1887, at Appleton, Minnesota, borrowed of S. F. Spencer $90 in money and bought of him eighty-three bushels of wheat for all which he gave his note for $154.84 with interest at ten per cent. a year, due October 15, 1888. He secured the payment of the note by a mortgage on a horse and two cows. W. A. Mattice acted as agent for Spencer in the transaction and signed the note with plaintiff, as his surety. Mattice died intestate December 13, 1887, and defendant was appointed administrator of his estate. The note was proved as a claim against the estate and was paid by defendant, as administrator. Spencer thereupon delivered to defendant the note and assigned to him the chattel mortgage.

On November 26, 1888, Maxwell as administrator, took the horse and cows on the mortgage and was about to sell them under the power of sale therein, when the plaintiff brought this action of replevin to recover the possession, claiming that $10 bonus was included in the note, and that the mortgage was usurious and void.

On the trial plaintiff was a witness in his own behalf and testified that he saw Spencer and told him he was willing to give $10 bonus to get the money, and that Spencer sent plaintiff to Mattice to negotiate, and that he went to Mattice and completed the negotiation and had the papers drawn and signed, and that a bonus of $10 was included in the note and mortgage. The defendant objected to proof of these transactions with Mattice, on the ground that it is not competent for plaintiff, a party to the action, to give evidence of or concerning any conversation with, or admission of Mattice, a deceased person, relative to the matter at issue between the parties. 1878 G. S. ch. 73, § 8. The trial court overruled the objection on the ground that the evidence was of acts done, and not of conversations. The defendant excepted. Plaintiff had a verdict. The defendant moved for a new trial, and being denied appeals.

E. T. Young, for appellant.

S. H. Hudson, for respondent.

DICKINSON, J.

The only issue presented in this case is whether a note and chattel mortgage, executed by the plaintiff to one Spencer, was usurious. Spencer had placed money...