Hazard v. Smith , 21 Vt. 123 ( 1849 )

The opinion of the court was delivered by

Kellogg, J.

That the notes executed by Sholes to Smith were usurious is unquestionable, and so it was conceded in the argument; and if the notes were paid by Sholes, he could undoubtedly maintain a suit to recover the excess of interest, so paid. This right of recovery, however, was a privilege, which he might assert, or waive, at his pleasure; and if he contracted with the plaintiff, for a valuable consideration, to pay the notes, such payment would not entitle the plaintiff to recover the excess of interest. For it by no means follows, that, because the notes of Sholes were usurious, the notes of the plaintiff, executed to Smith upon the surrender of Sholes’s notes, were also infected with usury. If, however, the last notes were merely substituted for the former, without the intervention of any new and distinct consideration, they would be usurious. But if they were given by reason of the conveyance of the farm by Sholes, they were given upon a new consideration, uninfected by usury. Scott v. Lewis, 2 Conn. 135.

Hence it became important, in the trial of the case, to ascertain under what circumstances the plaintiff paid the notes in question, — • the Sholes notes. If, by the plaintiff’s contract with Sholes for the purchase of the farm, there was an unqualified undertaking on the part of the plaintiff to pay the notes to Smith, in consideration of the convenance, we think it quite clear, that such payment would, in contemplation of law, be the payment of Sholes, he having furnished the plaintiff the means, or an equivalent, for paying the same ; and in that event Sholes would be the person entitled to recover the excess of interest. And such, the defendant insists, was the character of the contract.

If, however, the arrangement and agreement between the plaintiff and Sholes were such, that the plaintiff only undertook and assumed the payment of the note of $3000 and the note of $270, given for the first year’s interest, (and perhaps the testimony tended to prove such to have been the understanding of the parties, for it appears, that the payment of those two notes was all that was allowed the plaintiff towards the purchase money of the farm,) and that, as to the rest of the notes, he merely undertook to indemnify Sholes against the payment of them, and that, in pursuance of that arrangement, he contracted with Smith to pay him interest upon the note of $3000 for the remaining time it had to run, at the stipulated rate of nine per cent., and that he executed the two last notes for such interest, not having received any consideration from Sholes for the payment of the same, then said last two interest notes became and were substituted for the two corresponding notes made by Sholes, and were equally as much tainted with usury, as the notes for which they were substituted. Such, the plaintiff claims, was the true character of the transaction. And in the event of such being found to be the contract, we think the plaintiff might well sustain the present suit. These, however, were questions of fact, proper for the consideration of the jury, under suitable instructions from the court, and were material in the finding of the issue submitted to them. It is apparent, that the testimony of the witness Sholes, as detailed in the bill of exceptions, tends to prove, that, by the contract between Sholes and the plaintiff, the plaintiff, in consideration of the conveyance of the farm, undertook to pay and talce up, for Sholes, the four notes which Smith held against him. It is upon this testimony the defendant is supposed to have based her second request to the court for instructions to the jury ; and if she was not entitled to the particular charge requested, she was, at least, entitled to such a charge, as the facts in the case required. The court declined to charge as requested, and simply directed the jury, that, if the facts testified to by the witnesses were believed, the plaintiff was entitled to recover. This direction, we think, was too general. It was not sufficiently definite, to direct the jury to the particular facts they must find, in order to entitle the plaintiff to their verdict. The court should have called the attention of the jury to the different aspects of the case, as presented by the testimony. The case required full and explicit instructions to the jury ; and in consequence of the neglect of the court so to instruct them, they might and would be very liable to found their verdict upon an incorrect view of the case. The direction to the jury was virtually a direction to return a verdict for the plaintiff We think it was an improper direction, and for this cause the judgment of the county court is reversed and the case remanded for another trial.