Isaac Wintermute, Appellant, v. Ira Patchin et al., Respondents

Isaac Wintermute, Appellant, v. Ira Patchin et al., Respondents. (Submitted March 14, 1873; decided June term, 1873.) This was an action upon a promissory note for $210, made by defendants, payable to George H. Smith or bearer. The defence was usury. Defendants’ evidence tended to show that there being an execution in the hands of the sheriff against defendant Patchin, for $210, the latter applied to. Smith, the payee, for the money; that Smith agreed to pay the execution upon receiving the notes of defendants, one for $210 and the other for twenty dollars; that Patchin complained that twenty dollars was too heavy a “ shave,” but Smith insisted upon it and the notes were given. Plaintiff’s evidence tended to show that Smith agreed to raise the money, as agent for Patchin, for twenty dollars) that he took the notes, and on the $210 note procured the money of plaintiff, who paid the execution; that the latter did not have the twenty-dollar note, and knew nothing about it. The court charged the jury that it was a question of fact for them; that if they believed plaintiff’s version'of .the transaction, Smith was the agent of Patchin, but if they believed defendants’ version he was not, and plaintiff could not recover, to which plaintiff’s counsel excepted. Plaintiff’s counsel requested the court to charge that the note in suit had no valid inception in the hands of Smith, so as to enable him to sue -upon it, and none until it came into the hands of plaintiff. The court refused so to charge, and plaintiff’s counsel excepted. Held, no error; that if defendants’ evidence was true, as the jury found, Smith took the note under an agreement to advance the $210 to pay the execution; that the agreement was binding, and hence the note had a valid inception in his hands, and plaintiff in paying the money did it for Smith, who transferred the note to raise money for himself; and that the transaction between Smith and Patchin was usurious, and that plaintiff took the note tainted with usury. W. L. Dailey for the appellant. R. King for the respondents. [MAJORITY — Earl, C.,] Earl, C., reads for affirmance. All concur; Reynolds, C., not sitting. Judgment affirmed.