Hawkins v. Sauby

Mitchell, J. This action was brought to recover possession of certain personal property under a chattel mortgage executed by defendant to one Russell, and by him assigned to plaintiff. The defense was that the note secured by the mortgage was usurious. It was admitted that the note in question was given for money loaned by Russell through his agent, one Colony. Russell was a resident of New Hampshire, and Colony of Ashby, in this state. The undisputed evidence was that Colony was, and for two or three years had been, the general agent of Russell to lend money in this state, with full power to renew, collect, and reinvest without consultation with or special instructions from his principal; and that in making the loan in question he exacted from defendant a “bonus” of (without being exact) $50, lending him in fact only $450, and taking from him a note for $500, bearing interest at 10 per cent, per annum.. As these facts were undisputed, defendant’s assignments of error in the admission of evidence are immaterial. The case was tried and- submitted to the jury upon the theory of the law that the act of Colony in exacting the bonus would not affect the validity of the securities in the hands of Russell or his assignee, unless he authorized, consented to, or ratified it. Of this the defendant had no ground for complaint. Upon the trial Colony and Russell testified that the bonus was not taken with Russell’s knowledge or consent; that Russell never authorized Colony to lend money for any greater rate than 10 per cent.; and that Colony exacted the be nus entirely for his own benefit. There was no positive or direct testimony contradicting them, and the principal question in the case is whether the evidence justified the jury in finding that the note was usurious. The fact being established that Colony was Russell’s general agent in such transactions, the presumption was that the exaction of the bonus was by his authority or with his consent, and *72 the burden was on the plaintiff to prove that it was not. Lewis v. Willoughby, 43 Minn. 307 , ( 45 N. W. Rep. 439 ;) Stein v. Swensen, 44 Minn. 218 , ( 46 N. W. Rep. 360 ;) Stein v. Swensen, 46 Minn. 360 , ( 49 N. W. Rep. 55 .) Where the positive testimony of witnesses is uncontradicted and unimpeached either by other positive testimony or by circumstantial evidence, either extrinsic or intrinsic, of its falsity, a jury, of course, has no right to disregard it. But, although there be no direct evidence contradicting the testimony of witnesses, the jury are not bound to accept it as true where it contains inherent improbabilities or contradictions which, alone or in connection with other circumstances in evidence, furnish a reasonable ground for concluding that the testimony is not true. Schwartz v. Germania Life Ins. Co., 21 Minn. 215 ; Klason v. Rieger, 22 Minn. 59 . An examination of the entire record satisfies us that such was the condition of the evidence in this ease. In the first place, both Eussell and Colony were interested witnesses. In the next place, their explanation of the object of transferring the note and mortgage to plaintiff is exceedingly unsatisfactory. The reason assigned is that Eussell wanted money, “wanted it bad,” and immediately, and yet Colony transferred this secured note to plaintiff, (his aunt,) and took for it her unsecured demand note, payment of which was never demanded, and evidently was not expected, until Colony, as her agent, collected the money on the very securities assigned. The transfer has the appearance of being merely colorable, and of having been suggested by a consciousness that there was some inherent vice in the not6. Again, Eussell testifies that he wrote to Colony directing him to assign the notes to plaintiff (whom he barely knew) according to an offer she had made him; while she testifies that she never made Eussell any offer, or had any communication with him, the business being transacted with Colony. Again, Colony testifies that when he made the loan to defendant he reported it to Eussell as a loan of $450, (in round numbers,) while, if the bonus had been exacted for his own benefit, the thing he would naturally have done would have been to report the loan as $500, (the amount of the note,) and take his bonus in cash. Further, while, according to Colony, the note included $50 “bonus” taken for his own benefit, yet he paid the entire avails to *73 Eussell, who accepted it, notwithstanding that the loan had, according to Colony’s testimony, been reported to him as only $450. The evidence justified the verdict. . The fifth assignment of error is based entirely upon an error in the paper book. Plaintiff’s second and third requests were good law, but they were fully covered by the general charge, and consequently the refusal to give them was not error. Order affirmed. (Opinion published 50 N. W. Rep. 1015 .)