Weimer v. Shelton

• Decision Date: 30 September 1841
• Citation: 7 Mo. 237
• Parties: WEIMER v. SHELTON.
• Court: Missouri Supreme Court

7 Mo. 237

WEIMER

v.SHELTON.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

J. B. BOWLIN, for Appellant. The only question here is as to the validity of the plea. The plea shows an amount of usury that covers the whole sum claimed, and avers the note void. The demurrer admits the usury, and so admitting, avoids the note under the statute. See Rev. Code, p. 333, § 4.

C. D. DRAKE, for Appellee. 1st. That the record shows nothing to rebut the conclusion that evidence was given under the common counts, upon which the court below might properly have rendered the judgment it did. There should have been a bill of exceptions to show that no such evidence was given. 2nd. That the matters set forth in the defendant's last plea constitute a defense personal to Call, the maker of the note, of which the defendant cannot avail himself, unless he shows himself to be an accommodation indorser for Call, without consideration, which the plea does not show; but, on the contrary, authorizes the conclusion that he was indorser for value. 3rd. That an indorser for value cannot inquire into the consideration passing between the maker and the in dorser, he not being privy to the matter. 4th. That the plea is vague, uncertain and indefinite, in setting out the alleged usurious contract between Call and Shelton. 5th. The plea prays a deduction from the note of $90, which by defendant's own showing was not reserved as interest on the note sued on, but on other notes previously given. 6th. That the plea alleges an inconsistency, in stating in one place the $90 to have been for usurious interest accrued on other notes, and in another place designates it as a part of the usurious interest agreed by Call to be paid for the forbearance of the sum of three hundred dollars.

NAPTON, J.

John G. Shelton brought an action of assumpsit against Weimer, on a negotiable note drawn by one George W. Call to the order of said Weimer, and indorsed by Weimer to the defendant in error. The note was for three hundred dollars, payable in four months. The declaration contained a special count on the note and the common counts. The defendant, Weimer, pleaded first, non-assumpsit; second, set-off; third, payment; and lastly, a special plea in bar, setting forth a usurious transaction between Call and Shelton. This last plea commenced in the form usual when the plea is designed to answer the whole action; it averred that the note was given in pursuance of a usurious agreement between Call and Shelton in which Shelton advanced to Call one hundred and fifty dollars, and took his note at four months, for three hundred dollars, sixty dollars of which was usurious interest upon the sum advanced, and ninety dollars was usurious interest upon other and preceding transactions; which preceding transactions are not set forth in the plea. The plea concludes as follows: “wherefore the said defendant saith, that in pursuance of the statute aforesaid, he the said defendant is entitled to a deduction of the said sums of sixty and ninety doliars aforesaid, from the amount of said note in the said first count of the plaintiff's declaration mentioned, and that the said plaintiff ought to be barred from having and recovering of him the said defendant, so much of the amount in said note specified, as amounts to the usurious interest so corruptly retained as aforesaid, all which he the said...