Reinback v. Crabtree

Citations

• 77 Ill. 182

Syllabus

<p>1. Instruction—must be applicable to the evidence. The court should refuse an instruction where there is no evidence to which it is applicable. Where the defense of usury is set. up. and there is no evidence that the interest received beyond ten per cent was in the nature of a penalty, an instruction based upon that view of the case, should be refused.</p> <p>2. Same—modification not prejudicial. The modification of an instruction, which can not prejudice the rights of the party asking the same, presents no ground for reversal.</p> <p>3. Same—not necessary to state exceptions not proved. If an instruction is a correct expression of the law upon a state of fact proved, or which the evidence tends to prove, it is sufficient, and it is not necessary-to state exceptions which would be proper under a state of facts of which there is no evidence.</p> <p>4. Usury—all payments of, may be applied on the principal. Where a party contracts for and receives a greater rate of interest than is allowed by statute, lie can not recover any interest ■whatever on the principal, and all payments made of such interest may be allowed as payments of the principal in a suit to recover the balance due.</p> <p>5. Although usurious interest once paid can not be recovered back, yet the rule does not, apply where the transaction lias not been settled, and the lender brings his action for the recovery of an alleged balance. In such case, the borrower may defend by claiming a credit for whatever usurious interest he has paid in the same transaction.</p> <p>6. Same—evidence of usurious contract. The taking of usurious interest. is prima facie evidence of an usurious contract; and whether a contract is usurious or not, is a question of fact, to be determined by the jury from the entire evidence.</p> <p>7. Variance—g$ to time of malting contract. Where pleas of usury allege that the usurious contract- was made at a particular time, it is not necessary to prove that the contract was made at the ti