Cook v. . Barnes , 2 Trans. App. 39 ( 1867 )

A judgment was rendered in this action against Lewis Wood for $5,773.33 and costs, on the verdict of a jury; which judgment was affirmed on appeal to the General Term in the seventh district. Since the judgment of affirmance, the original defendant, Wood, died, and the action has been revived by the substitution of the present defendant, his administrator.

The complaint contained three counts. The first was on a bond conditioned for the payment of $12,000 and interest, whereby it was averred that $8,000 of principal remained due and unpaid; the second was on a written contract for the sale of lands made between one Daniel Shaw and the defendant Wood, and assigned by Shaw to the plaintiff; on which it was claimed that a balance of $5,000 and interest remained due; and the third count was, in general terms, for lands bargained and sold by the plaintiff to the defendant.

The defense was usury. It is unnecessary here to state the particulars of the alleged usurious contract further than this: that the defendant Wood averred and claimed that the contract for the purchase of the lands alluded to in the complaint was in furtherance of a corrupt and usurious agreement between himself and the plaintiff, and that the bond counted on was given in pursuance of such contract, and, therefore, both contract and bond were void for usury.

On the trial the defendant gave evidence tending to prove his defense, and also proved that he had in fact paid $7,000 to the plaintiff and his assignor in part performance of the alleged usurious transaction. The plaintiff also gave evidence showing that his right to the balance on the land contract for $12,000, came to him by assignment or transfer from Shaw; and the evidence put in by him tended to prove that the purchase by Wood from Shaw, was disconnected from the usurious agreement which tainted the bond. The case being submitted to the jury on the evidence, they found that the bond was usurious and void, but they found in favor of the plaintiff for the balance of $5,000 and interest remaining unpaid on the purchase from Shaw, the right to which had been transferred to the plaintiff. The evidence authorized the jury to find as they did, that as between Shaw and Wood, there was no usury; and that the latter was under legal liability to the former to pay $12,000 for the lands, which it was agreed should be conveyed and which were afterward conveyed to Wood. The debt was reduced by payment to Shaw, to $9,000, when it was transferred to the plaintiff, who thereafter occupied the position of Shaw, in regard to it. Admit that the transactions between the plaintiff and Wood were usurious and void, and the plaintiff, who had succeeded to Shaw's rights, was entitled to recover the purchase price of the land sold and conveyed to the defendant, deducting therefrom such sums as Wood had paid or was entitled to have applied by way of set-off. In this view the recovery was right for the sum for which the verdict was rendered. The plaintiff recovered no more than his assignor, Shaw, could have recovered, had he been plaintiff, and as against him there was no evidence whatever of any corrupt agreement. This claim was not extinguished by the subsequent illegal transactions between the plaintiff and Wood, for notwithstanding it was embraced in the subsequent security, yet such latter security, on the claim of the defendant, was held illegal and void, and as a consequence the plaintiff was restored to his rights under the original (5 Wend., 595; 13 id., 505), which in fact had been fully performed except by the payment of the balance of the purchase price.

The judgment should be affirmed, with costs.

All concur.

Affirmed.