Shed v. Augustine

J. Answer; Several Defenses, not Inconsistent. Usury, extension of time to the principal whereby the surety is discharged, and payment, are not inconsistent defenses in an answer of a surety on a promissory note. % Laws op Foreign States; Judicial Notice. The courts of this state do not take judicial notice of the laws of another state; and it is error to instruct a jury as to the meaning and effect of those laws in the absence of any evidence concerning them. 3. Instructions, when Erroneous. Where the jury may have been misled by such erroneous instructions, and may have based their verdict upon them, it is the duty of this court to reverse the judgment, even though there are other matters upon which the jury might properly have returned the same verdict.

Error from Davis District Court. On the 8th of May 1855, at Mendota, Illinois, Augustine, as surety for one Rust, executed his promissory note for $200 payable to the plaintiff six months after date, with interest at the rate of 10 per cent, per annum. The action below was on this note. Defendant answered, setting up three defenses, first, payment; second, that he signed the note without consideration, and the plaintiff, by agreement with the principal debtor, extended the time of payment one year, and without his knowledge or consent, and for a valuable consideration; third, usury. Trial at September Term 1873. Plaintiff moved the court to require defendant to strike out all except the defense of payment, as being inconsistent, or elect upon which defense he would rest his case. This motion was overruled. Verdict and .judgment in favor of the defendant, and plaintiff brings the case here on error. 1. It was error to overrule plaintiff’s motion. The defenses were inconsistent. 1 Kas., 258; 84Kas., 672. 2. The case must have been decided in favor of defendant on either the ground of usury, or that the plaintiff extended the time of payment of the note, for there is no proof of payment of the principal. The proof as to extending the time is contained in the evidence of the principal to the note, P. B. Rust, and shows that there was no binding contract to extend the time, and no consideration therefor. Story on Notes, §§415, 426; Chitty on Bills, ch. 9, p. 442; Bayley on Bills, ch. 9, p. 339; 1 McLean, 93; 12 Wheaton, 554. As to the payment of interest during the time of forbearance, see 5 Wend., 501; 17 Pick., 150; 23 Me., 157; 17 Wend., 501; 5 How., 206. The requisites indispensable for absolving the surety, are, 1st, a consideration; 2d, a promise to indulge for a definite time; and, 3d, the absence of the surety’s assent: 4 Leigh, 622; 17 Wend., 501; 2 Randolph, 328; 4 id., 104. 3. As to the usury: The court instructed what the law of Illinois was'as to usury. There was no evidence before the court tas to the law of Illinois. The Gen. Stat. of 1868, p. 700, § 370, provide how the laws of other states shall be proved. The court could not take judicial notice of the laws of Illinois, and it was error to instruct upon the law without proof: 2 Kas., 222; 1 Greenl. Ev., §489; 6 Kas., 455; 10 Kas., 487. 1. The defenses of extension of time, usury, and payment, are not inconsistent with each other. They all may exist in a case. Nor do the cases cited by plaintiff’s counsel (1 Kas. and 8 Kas.) decide to- the contrary. But if it was' error to refuse to grant the plaintiff’s motion, it is not at all certain that it is such error as would require a reversal of the judgment, the plaintiff not being prejudiced thereby. If there is sufficient evidence in the record to sustain any one of the defenses, the verdict and judgment must stand. 2. The evidence shows that the time of payment of the note was extended by the payee and principal, for a valid consideration, without the consent or knowledge of Augustine, the surety. Bearing in mind the rule so often laid down by this court, that it will not disturb the verdict unless it is clearly against the weight of the evidence, let us see what that evidence is: Rust, the principal, testifies that he was to pay 20 per cent, interest on the note; and that this was to be the rate on the new (or $200 note) is shown, because he repeats that he was to pay $40 a year interest. He says: “I paid the interest sometimes a little before, sometimes after the same became due. After the note became due I paid in six months $40. I am quite positive I paid four- and-one-half years' interest. I think I paid Mrs. Shed in all $210. The note (first, or old note,) had run from the previous summer. All the amounts I paid were paid voluntarily as interest. I think I paid at one time $30. At the time I executed the new note I paid $10. I paid these amounts as interest.” The plaintiff in her testimony does not deny that the rate of interest agreed to be paid was 20 per cent., and this evidently was the rate on both notes. She does not deny that the sums named by Rust were paid. She does not deny that they were all paid as interest. She does not deny that the first note had run from the previous summer, and as the note sued on is dated May 8th 1855, it is not probable that the first note had run over one year. It would seem as if the $30 was paid on the old note, and as all that was paid was interest, it is fair to suppose that the $30 was the interest on the $150 note for one year; and if so, then the $10 paid at the time of the execution of the $200 note was interest paid in advance on that note. If the $30 was not paid on the old note then $40 was probably paid in advance on the $200 note. Rust says he “paid the interest sometimes a little before, sometimes a little after it was due.” The plaintiff does not deny this last statement. If interest was paid and received in advance for any period of time, by such action of the parties the payment of the note was extended to that time. The payment being as interest, the $200 could not be due till the time expired for which interest had been paid. It was in effect an agreement not to sue till then: 5 Kas., 483, 487; ION. H., 318; 11 N. H., 335; 15 N. H., 119; 30 Miss., 432; 37 Geo., 384; 27 Ill., 323; 26 Penn. St., 140; 14 Ohio, 348; 15 Ohio St., 57. The decisions cited by plaintiff in Maine and Massachusetts must give way to these authorities. Nor is the fact changed by the testimony of the plaintiff that she “never agreed to extend the time of payment.” It is probable that she did not make what she called an “agreement.” (13 Mass., 72.) Nevertheless, her negotiations with Rust amounted to such agreement. Whether she did make such agreement, is a conclusion which must be arrived at from what was said and done. 3. Nor does it make any difference whether the court charged correctly as to the law of the state of Illinois on the question of usury. If there is evidence in the record, under the law as laid down by this court as to the weight of evidence, to support the verdict under any one of the defenses, the court will not reverse the judgment for erroneous rulings of the court below on other issues. The jury could not have found under the evidence that the defense of payment was made out; nor could they have found, under the charge of the court, that the defense of usury was sufficiently made out. The court must therefore have found for the defendant on the defense of the extension of time; and their verdict on this defense cannot now be disturbed.