King v. Curtin ( 1908 )

Mr. Justice Robb

delivered the opinion of the Court:

Assuming, without deciding, that the defendant, as the maker of new notes to take the place of the former usurious notes to which he was a party, could take advantage of section 1182 of the Code, and plead usury as a defense to all except the principal sum due, does his affidavit as amended meet the requirements of the 73d rule? Even though we give it a liberal construction, we are constrained to hold that it does not. The 73 d rule prescribes the manner of making an issue, and, if the issue is made as prescribed, the right of trial accrues and not otherwise. Fidelity & D. Co. v. United States, 187 U. S. 315, 47 L. ed. 194, 23 Sup. Ct. Rep. 120. In the present case the plaintiff has complied with the rule. In his declaration and accompanying affidavit he gives the date, amount, and rate of interest of each note, and when due. The defendant attempts to interpose usury as a partial defense without stating the facts which constitute the alleged usurious transaction. His assertion that the notes sued on are usurious is a mere conclusion of law, and not a statement of fact from which the real character of the notes may be determined. He avers that the note for $314.49, mentioned in the declaration and affidavit, took the place of eighteen notes upon which his name appeared as accommodation indorser, one Charlton being the principal in each; and that the amount actually loaned Charlton “did not exceed $140, the difference between that amount and the amount shown by the said notes being usury.” He further avers that “each of the other twelve notes described in the declaration was made in consideration of previous notes on which in their origin a small cash loan had been made by the plaintiff, but which, despite frequent payments, had grown, by usurious additions, to dimensions far in excess of the original loans.” Under the rule, the plaintiff, if he so elects, may have judgment entered in his favor for the amount confessed by the defendant to her due. But the plaintiff is not bound to accept the mere conclusion of the defendant based upon facts not appearing in his affidavit. Obviously the affidavit should state facts sufficient to enable the court to verify the conclusion. We think the affidavit of defense in the present case should have stated, if it was within the power of the defendant to have so stated, the date, amount, and rate of interest of each of the alleged usurious notes, and when they matured, and also the amount of the usury. Unless the defendant was prepared to be much more specific in his proof than in his affidavit, a trial would have been an idle ceremony, since he could not have prevailed. If he was prepared to be more specific in his proof, he should have made his affidavit conform to the rule, and thus enable the plaintiff, if he so elected, to take judgment under the rule for the amount legally due him.

The amendment to the defendant’s affidavit contains a mere reiteration of the conclusion reached in the main affidavit, and hence is subject to the same objection.

The judgment must be affirmed, with costs, and it is so ordered. Affirmed.