Hull v. Augustine

23 Wis. 383

• Court: Wisconsin Supreme Court
• Decided: June 15, 1868
• Status: Published

Opinion

Cole, J.

Whether the defendant Augustine was bound by the note sued on, depended upon the question whether the plaintiff had notice, at the time it was given, of the previous dissolution of the partnership of McKenzie, Augustine & Co., or had knowledge of facts from which he ought to have inferred a dissolution. This was a question of fact, fairly submitted to the jury upon the evidence. To our minds, the preponderance of testimony is in favor of the supposition that the plaintiff knew, when he took the new note, that the firm was dissolved. But he testified that he had no notice thereof, and the jury seem to have credited this statement in opposition to the clear weight of evidence. We cannot, however, set the verdict aside because the jury arrived at a conclusion quite different from what we should have' done upon that question.

The only remaining point arises upon the defense of usury. The note was given in the state of Illinois, and is to be governed by the laws of that state in respect to usury. According to the testimony of Mr. McKenzie, there was a written agreement to pay interest at the rate of fifteen per cent per annum, although the note upon its face bears interest at only ten per cent. A contract to pay interest at the rate of fifteen per cent, for a loan of money or a forbearance of a debt previously existing, would have been usurious by the laws of this state when the note was given. Now, although in the amended answer of Augustine it is alleged, that the note and contract sued upon were void for usury, yet there is no allegation that the contract was usurious by the law of Illinois; nor was there any proof given on the trial as to what the laws of Illinois were upon tbe subject of usui'y. In tbis state of tbe pleading and proof, tbe question arises, wbetber tbe defense of usury is available. On tbe part of tbe defendant Augustme, it is contended that it is — that since tbe contract is usurious by'tbe laws of tbis state, in tbe absence of all proof to tbe contrary, we must presume tbat tbe law of Illinois is tbe same as our own upon tbe subject of usury. But the law seems to be settled tbe other way' — tbat a defendant seeking to avail himself of tbe defense of usury to a foreign contract is bound to set up in bis answer tbe foreign law which renders the contract void, and sustain tbe allegation by proof on tbe trial; and tbat no presumption will be indulged in bis favor. Cutler v. Wright, 22 N. Y. 472; Brackenridge v. Baxton, 5 Ind. 501; Wilson v. Clark, 11 id. 385; Davis v. Rogers, 14 id. 424; Thatcher v. Morris, 11 N. Y. 437; and Jewell v. Wright, 30 id. 259. In many cases tbe courts will presume tbat tbe laws of a foreign state, nothing being shown to tbe contrary, correspond with their own (Rape v. Heaton, 9 Wis. 341; Walsh v. Dart, 12 id. 635); but tbis presumption is not indulged in when tbe foreign law imposes a penalty or works a forfeiture, as in tbe case of usury. Our statute of usury is highly penal. It forfeits tbe entire debt, and did when tbe note sued upon was given. We are not, therefore, to assume tbat tbe law of Illinois corresponds with our own, and visits tbe transaction with the same penal consequences. On tbe contrary, if tbe defendant intended to avail himself of the defense of usury, be should have alleged in bis answer tbat tbe contract was usurious by tbe laws of Illinois, and should have sustained tbis averment by proof on tbe trial. As the case now stands, we must assume tbat the agreement to pay interest at tbe rate of fifteen per cent, was unobjectionable by tbe law of tbat state.

Tbis disposes of all tbe material questions in the case.

By the Court. — Tbe judgment of tbe circuit court is affirmed.