Cornell v. Barnes , 26 Wis. 473 ( 1870 )

Paine, J.

It is not claimed in the answer that including the exchange due upon one of the old mortgages, according to its terms, in the present mortgage, constitutes usury. That mortgage was given in 1850, when the law in force allowed any rate of interest for which the parties chose to contract; consequently no question as to usury could arise upon it.

But it is claimed that the present mortgage is usurious, because, in addition to the ten per cent, in-' terest, it stipulates for exchange current at the time of any payment on the city of Troy, New York, where the mortgagee resided. It is alleged in the answer, and was attempted to be proved on the trial, that this was done, although it was understood that the money was not to be remitted to Troy, but was to be retained by the plaintiff’s agents in this state, to be re-loaned here. The only proof offered of any such understanding was that of Barnes himself, who attempted to show it by swearing to the statements of Strong, the agent of the plaintiff, who is now dead. The agent being dead, so that his testimony could not be had' it was incompetent for the defendant to testify upon that point. Laws of 1865, ch. 305. And if the objection had been made, his testimony as to the conversations of Strong, not only upon this subject but upon many others, ought to have been excluded. But the specific objection that he was not a competent witness, because the agent with whom he transacted the business, and about whose statements he was testifying, was dead, does not seem to have been made. And that was necessary in order to raise the question. A general objection to particular questions that they were irrelevant, or immaterial, or improper, was not sufficient.

But, permitting his testimony to go for what it is worth, it seems very clear that there was no usury in this mortgage by reason of the stipulation for exchange —conceding that where exchange is contracted for as a mere mode of obtaining more for the use of the money than legal interest, and without any design that it shall be remitted to the place upon which exchange is provided, it would be usury. Where such is not the case, and the exchange is stipulated for in good faith, as payment for the transportation of the money, it does not make the contract usurious, even though in addition to the highest rate of interest allowed by law. In such case it is not paid as interest. It is not paid for the use of the money. But it is paid only as the expense of making the payment itself at the place where the parties might have contracted that it should be made. The Central Bank of Wisconsin v. St. John, 17 Wis. 157.

The question, therefore, in every such case depends entirely upon the fact whether the exchange is stipulated for with a corrupt intent to evade the statute against usury, and to really get more interest than the law allows to be taken, by calling it exchange. Even if this contract had stipulated for the highest rate of interest allowed by law, no such corrupt intent could be assumed here upon the whole evidence. Cornell, the mortgagee, resided in Troy. Although he had agents in this state who were loaning his money, and although that which was collected may have been sometimes re-loaned here without having been remitted to Troy, yet it appears that the agents were in the habit of remitting from time to time, according to the exigencies of the business. And it is wholly improbable, notwithstanding anything testified to by Barnes, that Strong made any statements showing any fixed or distinct intention that this loan, which had five years to run, was not to be remitted to Troy, but was to be re-loaned here. The utmost effect that can be given to this evidence is, to show that he may have learned from the conversation of Strong the general fact, that moneys collected by the agents were often re-loaned without being remitted. But, notwithstanding that, it is incredible that the plaintiff had any distinct or fixed intention that the same state of things should continue for five years, and that this money, when paid, should also be re-loaned without regard to the exigences of his business at that time. It is but reasonable for a man always to assume that he may need money to be paid to him, in the future, where he resides. It is but reasonable for him to provide that the payments shall be transmitted to him there, so as to leave himself the option to have it done if he should desire it. And where that is all that is done, the mere general fact that he at times exercised the option to have the money re-loaned, without being actually remitted, would not be sufficient to show the corrupt intent necessary to constitute usury.

But here it is not necessary to rely upon this reasoning. A conclusive answer to the claim of a corrupt intent to evade the statute, and obtain more than legal interest, is found in the fact that, while the law allowed the parties to contract .for twelve per cent., this contract only requires ten; and the current rate of .exchange at the time it was made, and for fhree years after, as appears by the allegations of the answer itself, was less than two per cent. Two per cent, was more than the usual rate, And although at one time during the five years it exceeded that rate, yet the fact has no tendency to counteract the effect of the other fact, to show conclusively that in contracting for exchange there could have been no corrupt intent to evade the usury law; because the contract as drawn, including exchange at the rate then current, and at any rate that would probably be current, called for a less amount than might have been contracted for directly as interest.

The claim, also, that there was usury by reason of attaching the stock subscription by the defendant as a condition of the loan, seems to us a mere pretext. There was no proof on this subject, except the testimony of Barnes, as to his conversations with Strong, which was incompetent, if it had been objected to. But giving his statements all the effect that they can justly be entitled to, they will warrant no inference more favorable to this defense, than that Strong may have used the power he had in respect to this loan, as a means of inducing the defendant to subscribe for the railroad, an object in which he was at that time deeply and actively interested. But that was a matter between Barnes, Strong and the railroad company, with which the plaintiff had nothing to do, and in which he had no interest. Eor the claim that Strong admitted that he had loaned the plaintiff’s money on inadequate security in Racine, and that the stock subscription was made a condition of the loan on behalf of the plaintiff, with a view to enhance the value of property generally by building the railroad, and thus rendering the security adequate, is too far-fetched and preposterous to be entitled to a moment’s credit.

The fourth defense, alleging a failure by the plaintiff to comply with the agreement to release portions of the property, as therein set forth, was not sustained by the proof. The agreement was, that Barnes might pay $5,000 at any time, in installments of not less than $1,000 each; and that, “ on the payment of each one thousand dollars, one hundred acres of the land should be' released,” etc. It was not agreed that the land should be released before payment, for the purpose of enabling Barnes to effect a sale to raise money to make a payment. In order to put the plaintiff in default, he was bound to pay, or tender at least, a thousand dollars. He never paid or tendered anything. He seeks to avoid the. effect of this want of compliance with a condition precedent on his part, by swearing that Strong said that he would not accept the money nor release the land. But though, for some purposes, a tender may be waived or dispensed with, for others it cannot be. Thus, if one contracts to convey land on payment of the price, the party, in order to compel a conveyance, must pay or tender the price, even though before the appointed time the other should say, generally, that he would not comply with the contract. So, in order to lay a foundation for damages for not releasing upon payment, the party should show a payment or tender. Without this the other party is in no default It may well have been that, though he had stated generally that he would not comply, yet when the other party actually complied with the contract on his part, he would have changed his mind rather than incur the responsibilities of a default.

We may say further, that the testimony of Mr. Barnes seems to us exceedingly improbable in several particulars, and it so happens that they all relate to defenses attempted to be established solely by his own testimony, growing out of transactions with a deceased agent, whose testimony cannot be had to contradict him. The improbability of his pretense, that the ground of insisting on his stock subscription was to improve the security on loans of the plaintiff already outstanding, has already been alluded to. His claim that Mr. Strong refused to comply with this agreement to release in case the five thousand dollars were paid, we regard us another instance, There could have been no adequate motive for such a refusal, as the remaining land was ample security for the balance of the loan,' and was so regarded, or the agreement to release would not have been made. The high character of Mr. Strong, who was well known- to the people of this state and to the members of this court, seems also to speak for him when he is unable to speak for himself, and repels the assertion that he would thus violate a plain agreement, as unfounded and improbable.

Another instance is found in the strange, if not suspicious, character of Barnes’ statements as to those persons who were ready to purchase his lands. They seem to have appeared for the occasion, and to have vanished without leaving any trace. Who or what they are he does not know. But they were there with the money in hand, ready to pay him $2,400 for 480 acres of the land. And he lost the sale because Strong refused to release. It is not explained why that fact should have had so damaging an effect. It is certainly unusual and seems altogether unnecessary, that an existing incumbrance upon land should defeat a sale to parties who had the money, and did not need to mortgage it to obtain the means of payment An arrangement could very readily have been made, by depositing enough to cover the mortgage, that would have secured all parties, and have accomplished the sale, -notwithstanding the incumbrance, if there were any purchasers really desirous of obtaining the property.

We are sorry this testimony of Mr. Barnes as to transactions with Mr. Strong was not properly objected to, so as to have been excluded. But although this was not done, the grounds upon which the law would have rendered him incompetent upon these points cannot be without their effect in determining upon his credibility. He is the party in interest, seeking to repay a loan of $15,000, that has been running at interest unpaid for more than ten years, by the defense of usury, and by a claim for damages which, he roundly estimates at the sum of $50,000, on account of a refusal to release a portion of the land from the mortgage, by a deceased agent of the plaintiff. The law considers the temptation of one so situated to falsehood, so great, where he is not held in check by the liability to contradiction by the other party to the transaction on which he bases his defense, that it disqualifies him as a witness. And though the objection was not so taken as to exclude the testimony, yet these considerations, joined to the extreme improbability of his statements in the particulars referred to, have led us to the conclusion that they were not only incompetent in law but incredible in fact.

We think that, upon the evidence, the defenses entirely fail, and that, whether or not the findings of fact are entirely full and accurate, the judgment is correct, and must be affirmed.

By the Court. — Judgment affirmed.