Richards v. Worthley , 5 Wis. 73 ( 1856 )

By the Qowrt,

WhitoN, C. J.

Without attempting to decide whether tbe facts elicited by tbe testimony are sufficient to establish usury in tbe mortgage attempted to be foreclosed, we think there is a fatal variance between them and tbe allegations contained in tbe answer.

The authorities cited by the plaintiff’s counsel show that courts are quite strict in cases of this kind, in requiring proof of the precise contract set out in the pleadings, and will not permit a party to prove another. Cloyes vs. Thayer, 3 Hill, 564; Moore vs. Ditmas, 4 Paige, 526.

There appears to be no h ardship in this rule, because a party who has made an usurious contract which he seeks to avoid has the power to set it forth correctly. In this case the defendant had the power to set forth in the answer all the facts which he proved at the hearing, and relied upon to prove the usury. But he did not do so; he set out quite a different contract so far as the facts are concerned, and according to all the authorities, should be confined to the proof of them.

Eor these reasons we must reverse the decree of the court below. Decree reversed.