Lukens v. Hazlett

This was an action to recover the value of personal property, taken under a chattel mortgage executed to secure an alleged usurious note.

The note for $585, executed by plaintiff to defendant, was confessedly usurious. If the $637 note secured by this mortgage had been given directly to defendant in substitution for the first one, it would have been also usurious; for where a new contract is substituted for a usurious one the taint of usury will affect the new security. Jordan v. Humphrey, 31 Minn. 495, (18 N. W. Rep. 450;) Tyler on Usury, 395.

*443The evidence tended to show that when the first note fell due the defendant told plaintiff that he could not renew it, but must have the money, and referred him to one Kelly, from whom he said he thought plaintiff could borrow it; that plaintiff thereupon applied to Kelly for a loan, and that Kelly assumed or pretended to loan him $687, taking as security the note and mortgage referred to, and leaving at defendant’s bank a check for that amount payable to plaintiff, which plaintiff indorsed to defendant, receiving in exchange merely the $585 note. In finding a verdict for the plaintiff the jury must, under the instructions of the court, have found that in this matter Kelly was the agent or mere “cat’s paw” of defendant; that the whole transaction was a mere device to evade the usury law; that the new note, although in form running to Kelly, in fact belonged to defendant, being a mere renewal of the old one. Without attempting either to state or discuss the evidence, it is enough to say that we think it was amply sufficient to justify such a conclusion. The rule of evidence in these usury cases is the same as in any other civil action. All that is required is a fair preponderance of evidence. And there is no device or shift on the part of the lender to evade the statute under or behind which the law will not look in order to ascertain the real nature of the transaction.

Defendant, however, contends that in order to constitute usury there must be a concurrence of intent of both parties, — on the part of the borrower to pay, as well as on part of the lender to take, usury; that in this case, inasmuch as plaintiff supposed he was borrowing the money from Kelly, and that he was giving the note to him to secure the loan, and did not know that defendant had any connection with the matter, therefore the new note is not infected with usury, because there was, in fact, no intention on part of plaintiff to give it in substitution for or in renewal of the old one. There are some loose statements in the text-books, and perhaps some judicial au-j thority,to the effect that to render a contract usurious both parties must be cognizant of the fact constituting usury, and must have a common purpose to evade the law. But it seems to us that it would be con-Itrary both to the language and policy of the usury law to hold any jsuch doctrine, as thus broadly stated. These laws are enacted to *444protect tbe weak and necessitous from oppression. The borrower is not particeps criminis with the lender, whatever his knowledge or intention may be. The lender alone is the violator of the law, and against him alone are its penalties enacted. It would be indeed strange if the only party who could violate the law had intentionally done so, and could escape its penalty because by some device or deception he had so deceived the borrower as to conceal from him the fact that he was taking usury.

If this note was in fact obtained by defendant in renewal of the usurious one, and the pretended loan by Kelly was a mere device to evade the law and conceal the fact from plaintiff, we have no doubt he could have defended an action on the note or maintain this action to recover the value of the property^ taken on the mortgage given to secure it, although at the time he executed it he was ignorant of the facts, and really supposed that he was borrowing the money of Kelly. First Nat. Bank v. Plankinton, 27 Wis. 177.

2. We think the question put to defendant’s witness Law was legitimate cross-examination. The latitude allowable in cross-examination is very largely a matter within the discretion of the trial court, and this court will not interfere unless this discretion is grossly and oppressively abused. And even if the question was not proper cross-examination, yet, the evidence being material to the issues in the case, its admission would be no ground for reversal, unless it affirmatively appeared that the defendant was unfairly prejudiced. Nothing of this kind appears. If the plaintiff made the witness his own, defendant would have the right to cross-examine him and to introduce evidence in rebuttal.

Judgment affirmed.