Opinion
(December Term, 1845.)
1. In an action qui tam, etc., for usury, where the count was that the defendant had corruptly taken, on 20 April, 1844, etc., usurious interest on a contract for forbearance, etc., from 21 April, 1843, to the said 20 April, 1844, and it appeared in fact that the usurious interest was taken for forbearance, etc., from 21 April, 1843, to 21 April, 1844: Held, that there was a fatal variance between the count and the proof, and, therefore, the plaintiff could not recover.
2. Although it is not requisite in a declaration for usury qui tam, etc., as it is in a plea, to describe the usurious contract specially, but it may be done generally, yet the declaration must be precise and accurate, in the statements of the sum lent and forborne, the time of forbearance, and the excess of interest; and these facts must be proved as laid.
APPEAL from CALDWELL Fall Term, 1845; Bailey, J.
Guion for plaintiff.
Dodge for defendant.
Debt for $350, founded on the statute against excessive usury. The declaration contains two counts.
The first count purports to set out the contract specially, and states it thus: that on 21 April, 1843, upon a corrupt agreement, etc., the defendant lent and advanced to Hawkins Kirby the sum of $175 and agreed to forbear and give day of payment therefor for the space of twelve calendar months next ensuing, and that for such loan and forbearance Kirby then agreed to pay to the defendant $200 at or before the (18) expiration of twelve calendar months as aforesaid; and that to secure the said sum of $200 Kirby on 21 April, 1843, executed a deed of conveyance to the defendant for certain lands, therein mentioned, in fee simple, which was absolute and without condition expressed in the deed, but that it was then and there further agreed between the defendant and Kirby that the said deed should become void and be surrendered upon the payment of the said sum of $200.
The count then proceeds to state that in pursuance, etc., Kirby on 20 April, 1844, paid to the defendant the said sum of $200, and that the defendant "then and there did corruptly take, accept, and receive of and from the said Kirby the sum of $25 by way of corrupt bargain and loan for the said Ferguson forbearing and giving day of payment, and having forborne and given day of payment of the said sum of $175, so lent and advanced as aforesaid, from 21 April, 1843, until and upon the said 20 April, 1844, which sum of $25 exceeds the rate," etc.
The second count states that on 21 April, 1843, the defendant lent and advanced to Kirby $175, and that afterwards, that is to say, "on 20 April, 1844, the said Ferguson did, at, etc., corruptly take and receive of and from the said Kirby the sum of $25 by way of corrupt bargain and loan for the said Ferguson forbearing and giving day of payment, and having forborne and given day of payment of the said sum of $175 so lent and advanced from the said day and time of lending and advancing the same as aforesaid until and upon the said 20 April, 1844, aforesaid, which sum of $25 exceeds," etc.
The cause was tried on the general issue; and the plaintiff having given notice to the defendant to produce on the trial the bond of defeasance hereafter mentioned, called as a witness the borrower, Kirby. (19) He stated that on 21 April, 1843, he borrowed from Ferguson $175 for one year, and that he was therefor to pay the sum of $200 at the end of the year, and that, to secure the payment of the $200, he at the same time executed an absolute deed to Ferguson for two tracts of land, in which the consideration was expressed to be $200, and Ferguson executed to him a bond with condition to reconvey the land or surrender the deed upon the payment of the said sum of $200 at expiration of the year. He further stated that on 20 April, 1844, he paid the sum of $200 to the defendant, who thereupon surrendered the deed of conveyance to Kirby, and the latter gave up to Ferguson the said bond which Ferguson had given to him as aforesaid.
The defendant then produced the bond itself. It purported to be an obligation in the penal sum of $1,200, to be void on condition that Ferguson should convey the land to Kirby in fee simple in consideration of the sum of $200 to be paid by Kirby to Ferguson therefor, provided Kirby should pay the sum of $200 on or before 21 April, 1844.
The counsel for the defendant thereupon contended that there was a variance between the contract thus appearing in evidence and that set forth in either count of the declaration, and moved the court to instruct the jury to find for the defendant. But the court refused and directed the jury that the matter was for them to decide, and that if they believed that Kirby had stated the contract truly, then the plaintiff was entitled to recover; but that if he was mistaken, and the bond set forth the contract truly, then there was a variance that was fatal to the plaintiff's case.
There was a verdict and judgment for the plaintiff, and the defendant appealed.
The Court agrees with his Honor that, (20) according to the contract as appearing on paper, there is a substantial variance from those stated in the declaration. Although it be not requisite in a declaration, as it is in a plea, to describe the usurious contract specially, but it may be done generally, inasmuch as the action is given to a stranger who may not be able to ascertain all the particulars, 1 Saund., 295, note, yet the precedents and authorities show that the declaration must be precise and accurate in the statements of the sum lent and forborne, the time of forbearance, and the excess of interest, because those three points are indispensable to enable the court to see, on the record, that the interest received according to the sum lent and time was at a rate forbidden by law. And those points must be stated according to the fact; for, as Lord Kenyon said in Rex v. Gillham, 6 Term, 265, they must be proved as laid.
That being so, the Court holds that there was error in refusing the instructions the defendant asked. The first count alleges the loan to have been on 21 April, 1843, "for twelve calendar months next ensuing," which would end on 20 April, 1844; and it subsequently alleges that on 20 April, 1844, the defendant received, under that corrupt bargain, the principal sum so lent and the further sum of $25 for the forbearance of the sum of $175 "from 21 April, 1843, until and upon the said 20 April, 1844." Now, the day of payment agreed on, as appearing in the written instruments, is not 20 but 21 April, 1844, and consequently the sum of $25 was agreed to be paid, and was paid, not for the forbearance for twelve months or until and upon 20 April, 1844, but for the forbearance until and upon the day following.
In this respect the second count, though not descending to as many particulars of the contract, stands upon the same ground with the first. It, however, states the three essential matters before spoken of, namely, the sum forborne, $175; the excessive interest, $25; and the time (21) of forbearance, that is to say, "from the said day of lending and advancing the same as aforesaid until and upon the said 20 April, 1844." This count does not allege any usurious contract originally, but it alleges merely that the defendant lent Kirby $175 on 21 April, 1843, and the principal not being paid, nor even due, as far as appears in the count, the defendant received, on 20 April, 1844, the sum of $25 by way of usurious interest for the forbearance of the principal money "until and upon the said 20 April, 1844." Now, clearly, that is not true; for, although the $25 was paid on that day, it could not have been paid as for the interest up to that day only, but it was as and for the interest that would accrue until and upon the next day, since the defeasance allows the borrower to pay the money on 21 April, 1844. If Ferguson were to sue Kirby for the debt now, he could certainly not recover interest on $175 from 20 April, 1844, but only from the 21st of that month, which shows that the count is inaccurate in laying that the $25 was received "for the forbearance until and upon 20 April, 1844," inasmuch as, though paid on the 20th, it was for forbearance until and upon 21 April, 1844.
The attempt to turn the point into a question of credit cannot be sustained. In the treaty the terms may have been used which were used by the witness on the trial; but all that was put an end to by the reduction of the contract to writing. There is no pretense that the parties falsified their contract when they put it on paper as a device to evade the statute of usury, or that Kirby did not know the contents of the written instruments, and accepted the bond under a misrepresentation of its contents. On the contrary, he was produced as a witness, not for the purpose of proving the agreement to have been different in its terms from what it appeared in the writing, but to prove the contents of the written (22) instrument as itself constituting the agreement. He could not have been examined at all to that point if he had not first stated that he had surrendered the bond to the defendant and if the plaintiff had not given the defendant notice to produce it. His evidence, therefore, was not competent, except as secondary evidence of the contract, under those circumstances. Now, when the writing itself was produced, its identity not being questioned, it proved its own contents, and, consequently, put that part of Kirby's testimony out of the case, instead of raising the point of the superior credit of the instrument or the witness. As a question of evidence, it is clear the writing, when produced, became the only competent evidence under the circumstances stated.
PER CURIAM. Venire de novo.
Cited: Jones v. Herndon, 29 N.C. 85; Taylor v. Cobb, 48 N.C. 140.