Waterman v. Brown

• Decision Date: 01 January 1858
• Citation: 31 Pa. 161
• Parties: Waterman versus Brown.
• Court: Pennsylvania Supreme Court

31 Pa. 161

Waterman versus Brown.

Supreme Court of Pennsylvania.

APPEAL IN EQUITY from the Court of Nisi Prius.

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Cuyler, for the appellants.

Tschudy and H. M. Phillips, for the appellees.

The opinion of the court was delivered by LOWRIE, C. J.

The defendant denies positively that there was any usury in the transaction, and we are quite dissatisfied with the evidence on which this denial was set aside. It proves payments made by the defendant to the plaintiff; but against his denial on oath, it does not prove that those were the only payments. What was paid by checks appears, and we are simply without proof that the rest was paid: and this is not strange, considering that the trial took place after the defendant's death, and fourteen years after the transaction.

Moreover, there was too much value attributed to the entries in the defendant's books as evidence. They were his own private memorandums, made for his own purposes, and liable to be altered at his pleasure, and they were in no proper sense admissions: 28 State R. 504. So far as they show his payments to the plaintiff, they seem to be elements of his account with his banker, rather than with the plaintiff; and therefore payments made in his business, not by checks, would properly be left out, and of course we cannot regard such entries as contradicting the defendant's denial of usury. Such slight evidence as this for setting aside the written contracts of parties, after such inexcusable delay, most certainly ought not to prevail.

But the fundamental question of this cause is yet before us; and to get hold of it rightly we must go back to the time of the transaction in 1839, and receive the light which the then existing circumstances give us.

The defendant lent to the plaintiff $6932 on his promissory note, to be paid in October 1839; and as security therefor the plaintiff made an absolute assignment to the defendant of three hundred shares of bank stock, and at the same time gave him a written authority to sell the stock to pay the note at its maturity, if the plaintiff should fail to pay it. By substituted notes the loan was continued till May 15, 1841, and was not then paid; no new note was given; and for eleven years afterwards no more is heard of the matter. Why?

The answer is plain on the evidence. The stock was then estimated as not worth more than twenty dollars a share, as appears by an act of the legislature of the state where the bank is situated, and we presume this to be well founded. That it was not worth more appears farther by the dividends, which for seven years after 1839 averaged less than 6 per cent. on twenty dollars. That it was not equal to the debt appears by the fact, that during part of the time additional security was given for the debt. It is quite manifest that, for seven years after the loan was made, the debt due by the defendant had continued to increase until it amounted to about $7400, if it was still subsisting, and there was no other security for it but the stock, then apparently worth less than $6000, for the plaintiff was insolvent; and the next year the debt was barred by the statute of limitations, and it is not till five years afterwards that this claim is made.

Now, though the plaintiff might have sold the stock at the maturity of the last note, yet surely it was very natural for him to...