McClures v. Greens ( 1867 )

Opinion op the Court by

Judge Peters:

Both the appellees in their answer to the cross-petition admit that the note for $40 was executed for the interest charged on the note for $150 for the years 1863 and 1864, and E. J. Green in his answer says “ that there is about $15 of usurious interest in said $150 sold, transferred and delivered to plaintiff herein as aforesaid;” for this last sum of $15 of usurious interest included in the note for $150, a deduction was made and a credit allowed;, but for that included in the note for $40 no deduction was made.. The legal interest on the note for $150 for the years 1863 and 1864, by compounding it at the end of one year, would be $18.54,. which taken from $40 would leave $21.46, for which appellants were entitled to a credit at the date of said note, viz.: 28th of April,. 1864, and for the failure to allow it the judgment must be reversed.

But in our opinion the court below also erred in refusing to-permit appellants to read the notes which they had taken up on the several renewals as they alleged as evidence to the jury; their allegations on that subject are direct and very specific. J. E. Green in his answer says he does not know whether they are the same or not, but wholly fails to say that he has no knowledge or information on the subject sufficient to form a belief in relation thereto; and E. J. Green fails to respond to the charge as to the rate of interest promised and inserted in the notes at each renewal^ •and virtually admits the notes filed by appellants were the same taken up by them at each renewal; but says other debts due him from appellants formed a part of the consideration of said notes. 'The answers, therefore, do not contain any such denials of the facts alleged as to require extraneous proof of the identify of the notes to authorize them to be read on the trial as evidence.

For the foregoing errors the judgment is reversed, and the cause remanded, with directions to order a new trial, and for further proceedings consistent with this opinion.