Smead v. Green

• Decision Date: 28 November 1854
• Citation: 5 Ind. 318
• Parties: Smead and Another v. Green and Another
• Court: Indiana Supreme Court

5 Ind. 318

Smead and Another v. Green and Another

Supreme Court of Indiana

November 28, 1854

ERROR to the Switzerland Circuit Court.

The judgment is affirmed with costs.

John Dumont, for the plaintiffs.

Joseph G. Marshall and D. Kelso, for the defendants.

OPINION

Perkins J.

Assumpsit upon a promissory note of which the following is a copy.

"$ 2,500. Cincinnati, March 11, 1846. Thirty days after date, we or either of us promise to pay William Smead & Co., or bearer, twenty-five hundred dollars, for value received. And it is understood that the liability of neither of us is to be affected by further time being given for payment; and in case said sum should not be paid when due, we or either of us do hereby empower any person duly authorized, to confess a judgment without process, and without notice given to us before any Court of competent jurisdiction, for the above sum and costs, with release of errors, &c., waiving the right of appeal. [Signed] Martin R. Green, Eliphalet Case Jr."

The defendants pleaded payment, with notice of set-off, &c. Replication, denying the payment and set-off.

The statutes of Ohio on the subject of interest were set out in the declaration and given in evidence.

The record states that--

"It was admitted by the defendants upon the trial, that the promissory note declared on was made by them at Cincinnati, Ohio, at its date, and that the plaintiffs were, at that date, partners, and that the note was payable to them. One Scott Carter testified that he had heard the plaintiffs say that the defendants agreed, at the date of the note sued on, to pay the interest on the note at the rate of 2 per cent. per month, and that they had paid the interest, at that rate, on the note, up to the 3d of September, 1850, on that part of the principal remaining unpaid. It was proved that 500 dollars of the principal was paid on the 3d of December, 1846, and 900 dollars on the 3d of April, 1848."

This was all the evidence given in the cause.

The Circuit Court gave judgment for the defendants. We affirm that judgment.

The contract to pay the 2 per cent, per month interest was usurious and void. The law of Ohio, as set out in the record forbade the taking of over 6 per cent. By the common law illegal interest, when paid, may be recovered back. The State Bank v. Ensminger, 7 Blackf. 105. And were this not so, the legislature of Ohio, in February, 1848, passed an act,...