Brooks v. Silver

5 Del. Ch. 7

• Court: Court of Chancery of Delaware
• Decided: September 15, 1874
• Status: Published

Opinion

The Chancellor.—

The only material question in this cause is, Did William Silver take an assignment of said bond upon a usurious consideration?

The evidence of William W. C. Brooks, after stating in what manner the consideration for the assignment was paid to him, says: “The sum of $1,760 was all that I received, and in the manner above stated, as the consideration of my assignment to him of the aforesaid bond of the complainants.” He also says that the complainants received no portion of the money advanced to him as the consideration for the assignment. His evidence in all respects sustains the statements in the complainants’ bill.

The complainants offer no other evidence in support of the charge of usury, and the general character of this witness for veracity is to some extent impugned, and some of his testimony in relation to matters relative to the negotiation and representations made at the time of assignment are contradicted, by witnesses in behalf of Silver.

James Fletcher, a witness in behalf of the defendant Silver, swears that he was present at the time said assignment was made, and that Silver gave to William W. C. Brooks, as consideration for said transfer or assignment, a check for $1,000, also $760 in bank notes, and a note of said William W. O. Brooks, held by said William Silver, for $240. There is no proof what was the consideration of the last note; and in absence of any proof that it was given without consideration, and for the purpose of making the assignment appear not to be usurious, I cannot presume what is not proved.

Joseph E. Booth, who was present during a part of the time at which the assignment was made and the negotiation therefor had, says that he knows of the transfer and assignment ; he also swears as follows: “ I do not know what was advanced or paid by the said William Silver to the said William W. O. Brooks as consideration for said transfer or assignment. I cannot give the amount and items of payment; they are not in my knowledge. At the time of said transfer or assignment, the said William Silver handed to said William W. C. Brooks a paper, saying: ‘ This and the other will make it right,’—and said Brooks answered, ‘Yes.’ I was not present at the commencement of the transaction, but only at the close of it.”

It is a settled rule of equity evidence that when a defendant answers responsively and in denial a material statement of the complainants’ bill, the complainant must support his statement by the testimony of two witnesses, or of one witness and such corroborating circumstances as will, in effect, amount to the testimony of an additional witness.

The complainants have not furnished such proof in this, •cause; in fact the preponderance of proof supports the answer -of the defendant.

The bill is therefore dismissed, and the complainants must pay the costs in three months, or attachment.