Patterson v. Storm , 14 Wis. 648 ( 1861 )

the Gowrt,

Dixon, O. J.

We are satisfied that the antedating of the bond and mortgage was merely colorable, and that it was done for the purpose of avoiding the effect of the act against usury which went into operation on the 5th of April. This conclusion seems so obvious from the whole evidence, that we deem a particular examination of it unnecessary. The circuit judge found that the agreement for the loan was made on the 1st day of April, the day to which the bond and mortgage were dated back. In this we think he is not sustained by the testimony. Nothing was consummated— no binding or valid agreement made, upon which either party could have had a remedy against the other, until the 22d of April, when the bond and mortgage were executed and the money paid over. Giving the utmost weight to the testimony of the plaintiff’s agent, Eodway, there was no such agreement — nothing more than an application on the part of the defendant to borrow, and a general offer by the plaintiff to lend. He testifies expressly that he does not know that the rate of interest was ever mentioned. This was a very important part of the agreement, and, from the general features of the case and the manner in which1 the business was closed, we cannot believe that it would have been overlooked if the parties had come to a final and definite understanding upon the subject. The agreement for interest, therefore, was, upon the plaintiff’s own showing, made on the 22d of April, at which time also, in our judgment upon the facts, the loan itself was made.

The judgment must therefore be reversed, and the cause remanded for judgment to be entered for the defendants according to the prayer of their answer.