Bond v. Worley

26 Mo. 253

• Court: Supreme Court of Missouri
• Decided: January 15, 1858
• Status: Published

Opinion

Napton, Judge,

delivered the opinion of the court.

The answer in this case sets up as a defence to the notes sued on that the obligor Worley was to have the privilege of renewing them at the end of the year, when they became due. This is no defence to the action, as the agreement to renew - did not amount to a defeasance or release and can only be available as the basis of a separate suit. (Bucher v. Payne, 7 Mo. 462; Atwood v. Lewis, 6 Mo. 392.)

The plea does not amount to a plea of usury, and we presume was not so designed. The defendant avers his readiness to renew and pay the entire face of the notes (including the twenty per cent, interest) with ten per cent, interest upon this amount, provided the agreement above referred to for further time is complied with. Defendant also states that the $800 note is without consideration, except the agreement aforesaid; the conclusion from all which is, that the notes are not yet due, but no unwillingness is expressed to pay them whenever they are due on account of any usurious interest being embraced in them. The answer ends with a prayer for discovery and for general relief.

It is not difficult to frame a plea of usury, and no particular form is required; nor ought any odium to attach to a resistance to exorbitant exactions. Still, it is at the option of a party to plead it or not; and although the court may infer from the facts stated that such a plea would have been available, the defence is not for this reason to be considered as set up. No bill of discovery is now allowed since our statute has provided other more convenient modes by which every purpose of such bills can be attained.

The other judges concur. Judgment affirmed.