Boylston v. Bain

Citations

• 90 Ill. 283

Syllabus

<p>1. Usury—by agent loaning without authority to take usury. Where a principal does not authorize his financial agent, in placing a loan, to charge a greater rate of interest than the law allows, and has no knowledge that a larger rate is charged by the agent, and does not receive the excess of interest, the defense of usury can not be sustained against him. In such case no unlawful and corrupt intent can be imputed to the principal, and he is not bound by the agent’s act beyond the scope of his authority.</p> <p>2. Same—burden of proof. On a plea of usury the burden of proof is on the defendant, and he must make out the defense by a preponderance of evidence.</p> <p>3. Same—when principal debtor pays surety, who assumes debt. Where the principal debtor settles with his surety, and pays him the sum due either in money or in property, and the surety agrees to assume and pay the debt, and, in pursuance of the agreement, takes up the old note, giving his own in the place thereof, the question of usury in the original transaction becomes immaterial, and the maker of the new note can not interpose it as a defense in a suit on his note.</p> <p>4. Error—will not always reverse. Where a principal in a note has paid his surety the amount necessary to discharge the debt, which the surety retains, and assumes the payment of the debt, and gives his own note in lieu of the old note, and this fact is presented by the pleadings, an error by the court in an instruction in respect to usury in the original transaction will be no ground for reversing the judgment against the defendant, as the judgment was proper irrespective of the question of usury.</p> <p>5. Instruction—repeating. The court is not required to give two or more instructions which are substantially alike, but it may give one and refuse others embodying the same principle.</p> <p>6. Evidence—weight and preponderance. It does not follow, necessarily, that when a fact is sworn to by one witness, and denied by another of