
    NELSON BROTHERS ROAD BUILDING COMPANY v. ERICKSON-JOHNSON CONSTRUCTION COMPANY.
    
    April 2, 1931.
    No. 28,408.
    
      John A. Nor din, for appellant.
    
      John A. Moore and Ernest W. Erickson, for respondent.
    
      
       Reported in 235 N. W. 902.
    
   Per Curiam.

In this action to cancel on the ground of usury a note and chattel mortgage for $5,000, defendant prevailed below, and plaintiff appeals from the judgment.

Both parties are incorporated grading and excavating contractors. They seem to have worked together more or less, plaintiff taking subcontracts from defendant. The evidence for plaintiff in substance is that April 27, 1928, when the note and mortgage were executed, it borrowed from defendant $4,500; an existing debt of $250 was included; and the remaining $250 of the new debt of $5,000 was a usurious bonus then exacted by defendant and agreed to be paid by plaintiff. (The note bore interest at the legal maximum of eight per cent per annum.)

The evidence for defendant is directly the other way. It is unequivocal that there was no bonus of $250 or any other sum; but that in addition to the $4,500 cash then advanced and the old debt for $250 another old claim of defendant against plaintiff oh open account aggregating $299.85 was settled at $250 and included in the note. If that evidence is true, and it was so found below, plaintiff has no case.

A strong argument is made for plaintiff to the effect that the old account had been settled long before. Persuasive as that argument may be, there is sufficient evidence against it reasonably to support the adverse finding. We cannot disturb it.

Judgment affirmed.  