
    Kilgore v. Emmitt.
    1. On appeal, the case will be heard in the appellate court on the pleadings-- and issues made in the court below, unless, upon leave granted in- such appellate court, the pleadings are changed.
    2. Where there are several issues, one of which is made by a demurrer to a reply, and the case is submitted to the court generally, with a request by defendant for special findings on one of the issues of fact, and the-record shows a special finding and judgment on that issue with an exception thereto; also, a general finding and judgment thereon without exception, but it nowhere affirmatively appears what disposition was made of the demurrer: Sold, in such ease, in the absence of all showing to the contrary, the general finding and judgment will be presumed to include all issues made in the case not specially passed on.
    8. Where the payee of a note lawfully carrying interest at the rate of ten per cent., having money in his hands belonging to the payor, and the same is credited on the note hy an agent of the payee without the knowledge of either party, though he might properly do so, they may, hy agreement, after the repeal of the ten per cent, law, substitute a new note in the exact terms of the old note, leaving off the credits so put upon the old note, without affecting the rate of interest, if it clearly appears there was no intention or device used to evade the provisions-of the statute regulating the then present rate of interest.
    Error to tbe District Court of Pike county.
    James Emmitt, defendant in error, plaintiff below, brought an action in the Court of Common Pleas of Pike county agaiust Andrew Kilgore, plaintiff in error, defendant below, for the foreclosure of two mortgages, executed by Kilgore and wife, on the same premises. The mortgages were given — one to secure tbe payment of a note-given by Kilgore to Emmitt for $6,000 at one year, with interest at ten per cent., payable semi-annually, aud dated September 23, 1858; the other by the same to the same, to-secure a note for $10,000 at one year, with interest payable semi-annually, dated May 2, 1865. The mortgages bore even dates with the notes they were made to secure. Kilgore’s wife, and one R. Dempsey, a lienholder, were also-made defendants. The prayer of the petition is for an-account and order for the sale of the mortgaged premises.
    Several defenses were interposed. The fourth was a set-off under a written contract for tbe sale of corn by Kilgore to the firm of James Emmitt- & Co., composed of James, David, and George D. Emmitt, dated March 31,. 1858, charging, for the purpose of making it a matter of set-off against James Emmitt individually, that in 1864 the-firm was dissolved, and that by the terms of the dissolution, James Emmitt did assume, agree, and bind himself to his partners that he would pa}?, discharge, and fulfill all and singular the obligations, liabilities, and contracts of the-firm, including the corn contract with Kilgore.
    To this defense of set-off, Emmitt replied: First. That the dissolution took place in 1862 and not in 1864, as charged; that he did not assume, etc. Second. That the-dissolution of partnership was in 1862; was not in writing, and was made more than six years prior to the commencement of this action. And, Third. That the contract between Kilgore and the firm was changed, and as changed,. ■fully performed by the firm on its part by payment for the corn delivered, and denying generally all the allegations of th& fourth defense not replied to.
    To the second reply to the fourth defense Kilgore demurred. This demurrer was, at the April term, 1873, of the court of common pleas, overruled. At the same term ,a decree was made on the merits, finding the amount due Emmett, and ordering a sale of the mortgaged premises.
    Defendant, Kilgore, appealed the case to the district 'Court, and, in April, 1874, a final judgment was rendered, in which plaintiff in error complains there was error to his prejudice.
    On the hearing in the district court, on the request of Kilgore, on the issues of fact made by the first and second ■defense, the court stated its conclusions of fact found, and conclusions of law on the facts so found, separately. This related exclusively to the question of interest. As to no other issue or matter was the court requested to make a ■special finding. The general finding of the court appears on the record, in this form: “ This cause was submitted to the court upon the issues joined by the plaintiff and the ■.said Andrew Kilgore,” etc. The record shows no affirmative disposition of the demurrer in the district court. No exception by plaintiff in error to any proceeding of the ■court appeal's on the record, save the exceptions that are taken to the special findings.
    There is no bill of exceptions in the record, so that the judgment here must rest upon the pleadings and special ¡and general findings, and judgment in the district court.
    The error of which Kilgore complains, by exception, he .avers, is in the special findings of facts, and the conclusions of law as to the rate of interest allowed by the court on part of the $6,000 debt.
    The record, in this regard, is as follows :
    “As to the issues made by the first and second answers of Kilgore to the first cause of action stated in plaintiff’s petition, the defendant, Kilgore, by his counsel, requested the court to state in writing the conclusions of -fact found, separately from the conclusions of law, and accordingly, pursuant to said request, the court stated in writing the conclusions of fact found by it in respect to said issues, as-follows, to-wit:
    “ First. That said original note for $6,000, drawing ten per cent, interest, payable semi-annually, was executed September 23,1858, as stated in said petion, and was secured by mortgage as therein stated.
    “ Second. That semi-annual payments of interest, at the-rate of ten per cent., were made, and credits therefor indorsed on said note, down to September 23, 1861. *
    “ Third. That on the 7th of January, 1862, the following-credit was indorsed on said original note, to-wit: ‘ Received on the within, eleven hundred and forty-one 39-100 dollars, $1,141.39, Jan’y 7, ’62.’
    “ Fourth. That on the 5th day of March, 1862, a further-credit was indorsed on said original note, as follows, to-wit: ‘ Received on the within, one thousand dollars, March 5th,. $1,000.’
    “ Fifth. That neither of said credits was indorsed upon said original note under the direction of the defendant, nor with his knowledge; nor with the actual knowledge, or under the direction of the plaintiff; but that such credits were indorsed upon said note by the duly authorized agent of the plaintiff, and were made out of moneys of the defendant that came into the hands of the plaintiff, which he-had the right to apply in making such credits.
    “ Sixth. That on the 6th day of May, 1862, the defendant, Kilgore, learning that the said amounts had been credited:, on said note, and desiring to use the said moneys for other-purposes, applied to the plaintiff for permission to so use the same, who expressed a willingness to accommodate him, provided the debt could be put in its original shape, to bear-interest at ten per cent., and remain secured by the said original mortgage; and accordingly, after taking the advice of an attorney, it was arranged aud agreed between the plaintiff and defendant, that a new note should be substituted for the original six thousand dollar note, and ■corresponding in every respect therewith, as to the date, amount, time of payment and rate of interest, and when payable, and all the credits indorsed thereon, except said credit of $1,141.39, and said credit of $1,000, which said new note was to be accepted in the place of said original note, and the latter was to be surrendered to defendant, ..and the said two amounts, to-wit: $1,141.39 and $1,000, so credited on said original note (but omitted on said new note), was to be again placed to the credit of defendant on the books of the plaintiff) to be used by the defendant for ■other purposes, all of which was done accordingly; that both the plaintiff and defendant, at the time, and in the .■substitution of-said new note for the original, acted in perfect good faith in regard to the transaction, without any actual usurious intent, and supposing and intending that the transaction, both in regard to the note and mortgage, would leave them stand j ust as originally made, and thereupon, from the said conclusions of facts so found by the court, and stated in writing, the court found the conclusions •of law as follows, to-wit:
    “ That said $6,000 note bears interest at the rate of ten per ■cent., payable semi-annually on the whole amount thereof, until January 7, 1862, and after that, until March 5, 1862; •$4,855.61 thereof bears interest at the rate of ten per cent., payable semi-annually, and $1,141.39, the residue of said $6,000, from January 7, 1862, until paid, bears interest at the rate of six per cent., payable semi-annually, and no more; and after March 5, 1862, $3,858.61, part of said $4,858.61, bears interest at the rate of ten per cent., payable, semi-annually, until paid; and $1,000 (the residue of said $4,858.61), bears interest until paid at the rate of six per cent., payable semi-annually, and no more; and that there is now due to the plaintiff, and he is entitled to recover said six thousand dollars, with interest computed thereon as aforesaid, and not otherwise, to wit: Interest .at the rate of ten per cent., payable semi-annually, on $6,000, from •September 23, 1858, to January 7, 1862, on $4,858.61, at the same rate, from January 7,1862, to March 5,1862; and ■on $3,858.61, at the samo rate, from March 5, 1862, until paid ; and on $1,141.39, at the rate of six per cent., payable semi-annually, from January 7, 1861, until paid; and on $1,000, at the same rate of six per cent., payable semiannually, from March 5, 1862, until paid; and that after deducting the credits indorsed upon said note, and computing iuterest on said sum of $6,000 upon-the basis afore’said, there is due upon said note of principal $5,307.86, and of interest, $2,440.19, making in all of principal and interest so due upon said note, the sum of $7,748.05, to which finding and ruling of the court, in respect to said conclusions ■of law, so found by it, from and upon said conclusions of fact so found as to said $6,000 note, and the said Andrew Kilgore, by his counsel, excepted, and asked that his said exceptions thereunto be noted, which is done accordingly.”
    After the final decree had been entered, and as part of the final entry, it appears that, “ thereupon came the said Kilgore, and moved the court to set aside said finding of the court in respect to the amount due upon said six thousand dollar note, and the rate of interest which $3,858.61, part ■of said note was entitled to draw, because said conclusions of law so found by the court upon said conclusions of fact so found by the court were erroneous, and were uusustained by the facts so found, which said motion was overruled by the court, and to which said ruling the said Kilgore, by his counsel, excepted, and asked that his said -exceptions be noted, which is done accordingly.”
    Emmitt made a like motion, which was overruled and exception taken on the record. He, however, does not, here, complain of any error in the judgment of the court.
    Plaintiff' in error avers there is error in the record and proceedings of the district court in this, to wit:
    
      First. There was error in sustaining the holding of the court of common pleas in overruling the demurrer of the defendant below to the second reply of the plaintiff below to the fourth ground of defense, or answer filed in said original cause.
    
      
      Second. If it does not appear from said record and proceedings that said holding of the court of common pleas was sustained in the particular above specified, then said district court erred in proceeding to a finding and judgment upon the other issues in said cause, without passing upon said demurrer.
    
      Third. As to the issues made by the first and second grounds of defense to thq first cause of action in the petition of the said James Emmitt, the court, in its conclusions of law deduced from the conclusions of fact, as found by the court, erred as to the rate of interest to be computed on said six thousand dollar note, allowing ten per cent, upon a part of said note, when but six per cent, should have been allowed on the whole amount of the same.
    
      Fourth. The court erred in refusing to set aside its finding and grant a new trial, or a rehearing, for the reasons set forth in the motion.
    
      Fifth. That the said judgment was given for the said James Emmitt, when, by the law of the land, it ought to have been given in favor of the said Andrew Kilgore.
    Proceedings here are to obtain a reversal of the findings and judgment of the district court.
    
      W. A. Hutchins and Geo. D. Cole, for plaintiff in error:.
    As to whether there was error as to the rate of interest allowed on the $6,000 note, see Reed v. Coale, 4 Ind. 283.
    As to the intention of the parties, see 1 Ohio St. 409 ; 12: Ohio, 544; 13 Ohio, 1; 5 Ohio St. 266 ; 10 Ohio, 378; 11 Ohio, 417; 2 Parsons on Notes and Bills, 412, note; 7 Ohio, 81.
    As to semi-annual interest: If there was no valid special contract, how does the question stand as to computation of interest semi-annually ?*
    The authority to compute semi-annually must be founded on the written contract, or it does not exist. As a debt, simply, it comes under the general act of 1824, and can-draw but six per cent. 1 S. & C. 742.
    Then, if the special contract is illegal, it is void, and avoid contract is no contract. It does not stand good as to the semi-aunual clause, but it is absolutely and wholly void.
    This is the rule laid down in Bunn v. Kinney, 15 Ohio St. 40; and see, 10 Ohio St. 440.
    
      O. F. Moore and M. A. Daugherty, for defendant in error :
    As to whether the rate of interest allowed on the $6,000 note was illegal, see 1 Am. L. C. 347 (283); Rundlett v. Small, 25 Me. 29.
    The doctrine of estoppel applies. See Hern on Estoppel, 340, § 328; Id. 337, § 323 ; Id. 348, § 338.
    As to semi-annual interest, see Mueller v. McGregor, 28 Ohio St. 265.
   Ashburn, J.

When an action is appealed to the district court, it will be there heard and disposed of upon the pleadings and issues made in the court below, unless by leave, in that court given, the pleadings and issues are changed. S. & S. 589; Warner v. Self, 30 Ohio St. 378; 14 Ohio, 437; Wright, 485. We are not, therefore, required in this case to review any portion of the proceedings had in the court of common pleas, on questions either of law or fact.

The record of proceedings in the district court, do not show what disposition was made of defendant’s demurrer to plaintiff’s second reply to the fourth defense. It is equally silent as to the court’s action on the issues of fact made on the fourth defense, by the first and third replies thereto. It does not follow, however, by reason of this silence, that these several issues remained undisposed of, to the prejudice of plaintiff in error. He does not complain of the action or non-action of the court upon these issues of fact; but claims to be prejudiced on the issue of law made by the demurrer in one of two ways :

1. If the district court overruled his demurrer to the second reply to the fourth defense, as did the court of common pleas, then he was prejudiced.

2. If the court failed to dispose of the demurrer, error intervened to his prejudice.

We do not think such to he the necessary or proper conclusion from the state of the record. In support of the judgment, the reviewing court will presume the court did pass upon the demurrer. It raised one of the issues in the case, and the record shows: “ This cause was submitted to the court upon the issues joined between the plaintiff, and said Andrew Kilgore; and the court having heard the .arguments of counsel, and being fully advised in the premises, do find,” etc. All the issues in the case, both of law :and fact, were submitted to the court, and the necessary presumption is, that they were each and all disposed of by the court, the contrary not appearing affirmatively.

The court made two findings, one special, at the request of plaintiff in error, and the other general on the submission of the issues to the consideration of the court.

To the special findings, plaintiff in error excepted ; but (did not except to the general finding. That finding stands as a general verdict, and final judgment thereon with all the presumptions in favor of its validity. The record showing no exception, as a general rule, the court will not go beyond the exceptions raised and assigned to find others, unless the latter be such as affect the jurisdiction of the ■court. 22 Ohio St. 88.

Treating this record as complete, we think one of the following conclusions would necessarily follow, viz., that the demurrer was disposed of in a manner satisfactorily to the plaintiff in error; or, that the issues of fact, made by the pleadings on the fourth defense, were disposed of in such a way that an exception to the determination of the court ■could avail plaintiff' in error nothing; or, that he abandoned his fourth defense. On either consideration, the ruling of the court need not, necessarily, appear in the record; and the court will be considered to have disposed of all the iive issues in the case. For facts presumed, are as effectu.ally established as facts proved, so long as the presumption remains unrebutted. 4 Ohio St. 113; 27 Ohio St. 311; 12 Ohio, 10.

ITad there been a contest in the district court on the issue of law made by the demurrer, determined adversely to plaintiff in error, with which he felt aggrieved, it can hardly be supposed that he would have failed to have saved his right for a review by causing the action of the court to appear on the record, supported by appropriate exception. As it is, no case is made for review on the de■murrer.

A second and principal alleged error is claimed on the special finding of facts and of law as to the rate of interest allowed on the $6,000 note.

It is objected, First, that ten per cent, interest, payable semi-annually, was allowed on the residue of the $6,000 note, after deducting the two credits, one of $1,141.39, and one of $1,000 ; and Second, in computing interest on the last above-named sums semi-annually from the dates when ■they were respectively placed as credits on the original note.

We think the court did not err, in either respect, to the prejudice of the plaintiff in error.

On the 6th of May, 1862, Emmitt and Kilgore, finding that Emmitt’s clerk had, without their knowledge, taken two sums, due Kilgore on the books of Emmitt, and placed them on the original $6,000 note, the parties agreed, upon advice, at the request, and for the benefit, of Kilgore, that a new note should be substituted for the old one, “ corresponding in every respect therewith, as to date, amount, time of payment, and rate of interest, and when payable, and all the credits indorsed thereon, except said credit of $1,141.39, and said credit of $1,000.” This substituted note Emmitt was to accept in place of the original note, and the old note was surrendered. The sums of $1,141.39 and $1,000 to be again placed on Emmitt’s books to the •credit of Kilgore.

This transaction took place after the repeal of the statute authorizing contracts for interest at the rate of ten per' cent. It is claimed the law in force at the time the new note was given must control'the rate of interest; that the-new transaction was a new note for the part of the old note unpaid, and a release of the amount that had been paid.

' The new note was not a renewal of the original note ;• but, in legal effect, a substitution of a new note for the old one, with the credits left off. This was not usurious. To constitute the transaction usurious, it is requisite that it should amount to either a loan direct, or to a device for the-purpose of concealing or evading the appearance of a loan* when, in fact, there was one. In the conduct of these parties we discover neither. These sums of money were not paid by Kilgore on the note, but, on the contrary, they were sums of money standing to his credit on the books of Emmitt, which Emmitt had the right to credit on the note,, but which had not been so credited with his knowledge. How these sums of money accrued in favor of Kilgore does not appear. It is clear, however, that they did not come to him with any purpose, on his part, to have them used as payments on the note. Under the findings of fact, these-credits, while not strictly a mistake in law or fact, should not be treated as absolute payments, until known and recognized by the parties as such.

Had the parties agreed that the credits should be erased, and they had been erased, the old note would have been restored to its original amount, and the rate of interest provided for therein not disturbed. The effect of destroying the old note and making a new one, in all respects like it, with the credits omitted, was not a loan of money, but a change of Kilgore’s money, thus misapplied, from the note-to book account. In view of the ascertained facts, it was competent for Emmitt and Kilgore to agree that the credits placed on the note, without their knowledge, should not be treated as payments on the note, and that they should be re-transferred to Emmitt’s books for the use of Kilgore. This was done under advice that the transaction was lawful, and without intention on the part of either party to ■evade the law.

The object and purpose of the parties was that the obligation of Kilgore, and the rights of Emmitt as to the $6,000, should remain the same as if the two credits in ■question had not been indorsed on the note, but remained on the books of Emmitt subject to Kilgore’s order. This is what the parties supposed they had accomplished. The surrender of the original note did not satisfy the original debt, nor any part of it, aud this for the reason the parties ■did not intend its destruction to have that effect as found by the court. The substituted note, in effect, took the place of the original one, and lawfully carries the same rate ■of interest as the old note.

"Where the new transaction is a loan of money, or is a devise for the purpose of concealing or evading the appearance of a loan, but is a loan in fact, made for the purposes of usury, the transaction will not be upheld. For the purpose of ascertaining the true nature of the transaction, the court will scan it carefully, to ascertain its real substance, for the purpose of determining whether it is a diguised loan or something else.

It was competent for the court to allow interest at the rate of ten per cent., with semi-annual rests on the amount ■■of the substituted note after the credits were removed. It follows that the court did not err, to the prejudice of plaintiff in error, in the rate of interest and rests found by the ■•court on either sum.

Judgment affirmed.  