Lathrop v. Davenport

20 Kan. 285

• Court: Supreme Court of Kansas
• Decided: January 15, 1878
• Status: Published

Opinion

'The opinion of the court was delivered by

Brewer, J.:

Action on note and mortgage. Defenses, usury, part payment, and discharge of one defendant as surety by extension to principal. The case of Jenness v. Cutler, 12 Kas. 500, disposes of the last defense. Even if it were not .applicable, both defendants signed as joint makers of the note, and the testimony shows that the payee had no knowledge as to the alleged suretyship.

As to the first two defenses, it appears that the note sued on was executed to take up two prior notes. There was ■simply a general finding of the amount due on the note. This amount was evidently reached by adjudging usury in the last two notes. All the notes on their face were valid, and beyond question the first note was valid in its inception .and in no manner tainted with usury. The doubtful questions are, whether after the maturity of the first note there was a subsequent contract for its extension upon payment of usurious interest, and whether the consideration of the second note was merely the interest due on the first, or an actual loan in cash. The testimony was substantially the depositions ■of the parties, and of the plaintiff's agent, and certain deposit slips. That of the plaintiff and of Mrs. Lathrop was mostly .hearsay, and of little value, leaving the questions to turn principally upon the testimony of Asa L. Lathrop and Mr. Fuller, the agent of the plaintiff, and the slips. The affirmative upon both questions was with the defendants. The note was prima facie valid. The finding was general. While both questions are doubtful, we are not sátisfied that the court erred in giving paramount weight to the testimony of Mr, Fuller, and upon that the conclusion was unquestionably correct. We can do no otherwise therefore than affirm the judgment.

All the Justices concurring.