Moir et al. v. Harrington et al. the amount of one hundred dollars, which was deducted from the $1,000 so loaned, which exceeds ten per cent. per annum interest on the sum loaned; that at the expiration of said six months the plaintiffs and said defendants corruptly contracted that the plaintiffs should receive $100 interest for the loan and forbearance of said sum so loaned, for a further period of six months, which exceeds the legal rate of interest at ten per cent. for said time; that the plaintiffs received the said sums of usurious interest, and the same were paid them by defendants; that the $1,000 described in said note which said note was conditioned to pay, is the same principal sum so loaned, wherefore the defendants aver that the plaintiffs have forfeited the whole of said interest so contracted to be received and received." Plaintiffs demurred to the second plea, and for special cause of demurrer set out that the plea is double. Demurrer was sustained, trial had, and judgment was rendered for the plaintiffs for the amount of the note and interest. Defendants prayed an appeal. The appellants assign the following causes: That the court erred in sustaining the demurrer to defendants' second plea. That the court erred in rendering judgment for the plaintiffs. PURPLE & HARDING, for Appellants. O. C. SKINNER, for Appellees. CATON, C. J. The only question in this case arises from the demurrer to the second plea, which was sustained by the court. That plea commences thus: "and for a further plea in this behalf, the said defendants say actio non, because they say," etc., and then goes on to show that the note was given for an usurious loan of money-that the money loaned and usurious interest thereon were both included in the note. The plea was no doubt an excellent one where usury destroys the whole cause of action, but was a bad plea under our statute. It professes to answer the whole cause of action, but answers only a part. The demurrer was properly sustained, and the judgment must be affirmed. Judgment affirmed. 4 22 42 (Waggeman v. Peters. 128 308 JOHN WAGGEMAN, Appellant, v. WILLIAM PETERS, Appellee. 99 42 141 299 APPEAL FROM PEORIA COUNTY COURT. Books of account are not admissible as proof, where the party keeps a clerk, or a person who sometimes acts in that capacity, who can prove the items. PETERS sued Waggeman in assumpsit on open account of $1,320.16, for a steam engine and fixtures, to the September term, 1858, of said County Court. The declaration contains the common counts only, for goods sold and delivered. Plea-general issue with notice of payment, set-off, and also a claim for damages for breach of contract by plaintiff, with copy of specifications amounting to $1,498.50. Issue was joined. At November term, 1858, there was a verdict for plaintiff. A motion for a new trial was overruled. Judgment for $350 and costs for plaintiff. S. A. Kinsey was called by plaintiff. Said: I know that defendant came to order engine and machinery sued for, in February or March, 1857. Know nothing of contract, as to price, time of delivery or otherwise; none made in my presence. Fire front charged, is worth 5 cents per pound. Plaintiff's bill of items read to witness with prices, who said prices were fair, and that defendant had received them all with certain exceptions. Know the plaintiff's ledger and blotter, (these are they); that he keeps no clerk, and that same are correct. I am plaintiff's foreman. Copy from slate to ledger and blotter, in evening, items put on the slate during the day. One-third of charges on books, mine; and two-thirds plaintiff's handwriting. Order-book of plaintiff, with drafts and entries, here shown to witness, who said they were the same made by him. William Weis called by plaintiff. Said, that as clerk for Tobey & Anderson, he had frequently settled by plaintiff's books and found them right. An account book of plaintiff was then offered, which witness said was the book he had settled by; but did not know whether it was the book of original entries or not. The book shown was plaintiff's ledger. Plaintiff having proved the delivery of several articles charged, offered said ledger and blotter in evidence; objected to by defendant. Objection overruled, and accounts of plaintiff read in evidence from said books. J. K. COOPER, for Appellant. C. C. BONNEY, for Appellee. Hartnett v. Ball. CATON, C. J. These books of account were not properly admissible for any purpose. The witness, it is true, says that the plaintiff kept no clerk; but, at the same time, he shows that he did within the legal signification of the term, as used in this class of cases, keep a clerk. The witness himself swears, that he generally made the original entries of the items which appear in these books. The general practice was to set down the items on a slate during the day, and then at night to copy them into the blotter or ledger. The witness says: "I usually set down the work on the slate, and did a part of the copying into the blotter." For every legal purpose, the witness was the plaintiff's clerk, and was competent to prove the delivery of the items, or the doing of the work. Here the plaintiff had servants in his employ, by whom he should be able to prove his account. If these books were admissible, then are the books of every shopkeeper or merchant admissible, for none can have better means of proving an account than the plaintiff had. If these books were properly admitted, then all books in all cases must hereafter be admitted. Books of account were first admitted as merely circumstantial evidence, to help a plaintiff who did his business himself and without any assistant by whom it was possible for him to prove his account. This was no doubt an innovation upon the common law, but the absolute necessity of the case, and to prevent a wrong to small dealers, who kept no assistants, so commended it, that it seems to have a good footing in the common law courts. But there has been a growing disposition to open the door wider and wider, for books of account as evidence, till now it seems to be thrown down altogether, and the original consideration of necessity, which first introduced them, is altogether lost sight of. But even admitting these books, we are not satisfied with the verdict. The judgment must be reversed, and the cause remanded. JOHN M. HARTNETT, Plaintiff in Error, v. MARIA BALL, Defendant in Error. ERROR TO LAKE. Although an absolute conveyance may be shown by parol testimony to have been given as a security only, yet such evidence must be so strong as to overcome all doubts, before the court will so decree. Hartnett v. Ball. AT February term, 1858, of the Lake Circuit Court, MANIERRE, Judge, presiding, a final decree was entered in this case, dismissing plaintiff's bill with costs. The pleadings and facts are sufficiently stated in the opinion of the court. C. C. PARKS, for Plaintiff in Error. FRAZER & CLARKE, for Defendant in Error. BREESE, J. The bill states the loan of $212, at 12 per cent. interest, and the execution and delivery of an absolute deed by one Shartswell to defendant, and of the tender afterwards in 1850, about one year or a little more, of $250, and a demand by Shartswell of a re-conveyance which was refused. Complainant in possession since his purchase from Shartswell, who left his wife in possession on his departure for California in 1849. Answer of defendant denies in the most positive manner the loan, and insists it was an absolute sale of the premises for $212, which was the full value thereof at the time. That she paid $100 down, and gave her note for the balance, which she paid a few months thereafter; denies that Shartswell was to remain in possession, and denies she was to reconvey on payment of $212 and twelve per cent. interest, or for any other sum ; alleges after Shartswell left for California, his family remained in the house but a few weeks; that defendant held the property, receiving the rents for it, made repairs and valuable improvements on it, and paid all the taxes from 1849 until September, 1855, when Sharts well being in possession, sold to complainant, and put him in possession he having full knowledge that Shartswell was only the tenant of defendant, and had full notice of defendant's title; denies any tender of any money at any time by Sharts well, or any one else for him; denies the demand of a deed from her, and denies the refusal of any money, or refusal to make a conveyance; denies that Sharts well ever offered to pay her $212, and twelve per cent. interest, or any other principal sum, or any other interest. Also denies that complainant has ever offered to pay $212, and twelve per cent., or any other sum; and denies ever refusing to receive it, or that she ever had a chance to accept or refuse; and denies the demand of a deed by complainant, etc.; denies Shartswell's possession, and avers that soon after her purchase she took peaceable possession of the property, and from that time until Sharts well's release to complainant, her possession continued peaceable, but admits since Shartswell's release com Brown v. Riley. plainant has been in possession without interruption; denies that Shartswell has paid any taxes on the property, except on account of rent. Admits the value to be now $1,500, and denies every material allegation of the bill charging her. General replication to answer, and notice to dissolve injunction. Case heard on proofs, and injunction dissolved, and bill dismissed. The testimony is somewhat conflicting, but taking the whole together in connection with Shartswell's letters to the defendant, the testimony of Dowst, one of complainant's principal witnesses; that he himself offered defendant's agent $350 for the property, and the testimony of B. W. Barnes, who appears wholly disinterested, that Shartswell told him he had sold the property out and out to defendant, and from what he had heard. since he came back from California, he could buy it back, but that he did not want to, as he thought he could do better with his money, and that defendant is proved not to be a person who loaned money, we think the weight of the evidence preponderates greatly in favor of the opinion that it was an absolute sale as the deed purports, by Richard Shartswell to Maria Ball, and that there is no equity in the complainant's bill. He bought the chance for two hundred dollars, knowing all the facts. We are in favor of affirming the decree. It is quite likely defendant would have permitted Shartswell to re-purchase in a reasonable time, as she was ignorant of the changes such property, near a flourishing city, undergoes, but when it was rising rapidly in value, she had a right to retract and hold on. The whole case shows an absolute sale, and not a loan and mortgage. The decree is affirmed. Decree affirmed. JOHN BROWN, Appellant, v. LAWRENCE RILEY, Appellee. APPEAL FROM KNOX. 52a 33 29 45 71a 31 A party who purchases personal property of a mortgagor, for a good consideration, it remaining in his possession, at the time of the purchase, will be protected, if the transaction on the part of the purchaser, was one of good faith. If such property is afterwards loaned to the vendor for a temporary purpose, or if the vendor is in the employment of the purchaser, the rights of the purchaser 174 492 will not thereby be disturbed. To impeach the sale of personal property, it is necessary to show that both vendor and purchaser designed to delay creditors. 29 45 22 45 95a 2347 22 45 105a 3637 |