Rozar v. Burns

13 Ga. 34

Opinion

By the Court.

Warner, J.

delivering the opinion.

[1.] There is no doubt that there ivas usury in the small notes executed by Rozar to King, and the only question is, whether the large note for $1094 00, executed by Rozar, payable to Burns, was in fact, given for the renewal of the small notes, or whether it ivas given for money loaned on the part of Burns, so as to enable Rozar to take up the small notes given by him to King. In regard to this feature of the case the evidence is conflicting.

There is evidence in the record that Rozar requested King to apply to Burns for a loan of the money to enable him to pay off the notes due King ; that King did so make applica tion to Burns, and Burns agreed to loan Rozar the money if King would sign tlie note as security, which he did, and with the money so obtained from Burns, the small notes were paid off. That is the history of the transaction, as given by King and Burns, whoso answers were read in evidence by the defendant at the trial. The defendant proves by his two sons, who were present when the large note was executed, though made payable to Burns and signed by King as security, without the request of defendant, was given in renewal of the small notes. Upon this state of facts, the Court charged the Jury, “ that if they believed from the testimony King was the agent of Rozar in the transaction, and Burns loaned the money bona fide to King as the agent of Rozar, and that it was not a shift and device to evade the Statute of usury, they should find the full amount of the note for the plaintiff.” There is evidence in the record of the agency of King in procuring the loan of the money from Burns; for King states in his answer, “that at the request of Rozar he made application to Burns to borrow the sum of money actually loaned by him for said Rozar.”

[2.] There was no request made for the Court to charge the Jury on the point which it is now insisted the Court committed error in omitting to charge the Jury. We find no error in the charge of the Court, and no error in the refusal of the Court to grant a new trial. The evidence was conflicting upon the main question in controversy between the parties, and the Jury were the proper judges of the credibility and effect of the testimony submitted to them. Although, in our judgment, Burns may have loaned the money bona fide, yet, it is not so clear that King was altogether blameless in regard to the usury in the small notes: but that was a question for the Jury, and they have decided it; and according to the facts disclosed in this record, we have no legal authority to interfere with their verdict.

Let the judgment of the Court below be affirmed.