
    John Parker vs. H. C. Maxwell.
    Submitted on briefs Nov. 10, 1892.
    Decided Dec. 14, 1892.
    Usury in lióte for Money Loaned and Property Sold.
    Evidence held sufficient to sustain the conclusion that a promissory note given for money loaned and personal property sold was usurious. If more than legal interest was exacted for the loan of the money, it was usury, even though property was sold as part of the same transaction.
    Facts Stated Were not Conversations or Admissions.
    A survivor of two contracting parties is competent to testify to the fact that a note given for money loaned embraced a specified sum in excess of the money loaned.
    Appeal by defendant H. C. Maxwell, from an order of the District • Court of Swift County, Powers, J., made April 22, 1892, refusing a new trial.
    The plaintiff, John Parker, on November 7. 1887, at Appleton, Minnesota, borrowed of S. F. Spencer $90 in money and bought of him eighty-three bushels of wheat for all which he gave his note for $154.84 with interest at ten per cent, a year, due October 15, 1888. He secured the payment of the note by a mortgage on a horse and two cows. W. A. Mattice acted as agent for Spencer in the transaction and signed the note with plaintiff, as his surety. Mattice died intestate December 13, 1887, and defendant was appointed administrator of his estate. The note was proved as a claim against the estate and was paid by defendant, as administrator. Spencer .thereupon delivered to defendant the note and assigned to him the chattel mortgage.
    On November 26, 1888, Maxwell as administrator, took the horse and cows on the mortgage and was about to sell them under the power of sale therein, when the plaintiff brought this action of replevin to recover the possession, claiming that $10 bonus was included in the note, and that the mortgage was usurious and void.
    On the trial plaintiff was a witness in his own behalf and testified that he saw Spencer and told him he was willing to give $10 bonus to get the money, and that Spencer sent plaintiff to Mattice to negotiate, and that he went to Mattice and completed the negotiation and had the papers drawn and signed, and that a bonus of $10 was included in the note and mortgage. The defendant objected to proof of these transactions with Mattice, on the ground that it is not competent for plaintiff, a party to the action, to give evidence of or con•cerning any conversation with, or admission of Mattice, a deceased person, relative to the matter at issue between the parties. 1878 'G. S. ch. 73, § 8. The trial court overruled the objection on the ground that the evidence was of acts done, and not of conversations. The defendant excepted. Plaintiff had a verdict. The defendant moved for a new trial, and being denied appeals.
    
      E. T. Young, for appellant,
    cited Griswold v. Edson, 32 Minn. 436; Farmers' Union Elevator Go. v. Syndicate Ins. Go., 40 Minn. 152; Hhodes v. Pray, 36 Minn. 392-; Lewis v. Willoughby, 43 Minn. 307.
    
      S. H. Hudson, for respondent.
   Dickinson, J.

The only issue presented in this case is whether a note and chattel mortgage, executed by the plaintiff to one Spencer, was usurious. Spencer had placed money in the hands of the defendant’s intestate, Mattice, to loan. The latter loaned some of this money to the plaintiff, and upon that loan the note and mortgage were given. Upon receiving the money from Spencer, Mattice having assumed a personal obligation therefor, Spencer, after the death of Mattice, presented a claim against the estate on that personal obligation of the intestate, which was allowed by the court and paid by the administrator. The estate thus becoming entitled to be subrogated to the securities held by Spencer for the money loaned, the latter transferred the plaintiff’s note and mortgage to the administrator.

The plaintiff was allowed to testify that he received for the note and mortgage (as the consideration for which they were given) $90 in money and 83 bushels of wheat; and that a bonus of $10, which he had agreed with Spencer to pay, was included in the note. Such testimony was not within the prohibition of the statute. 1878 G. S. eh. 73, § 8. It was not evidence “of or concerning any conversation with, or admission of,” the deceased. Chadwick v. Cornish, 26 Minn. 28, (1 N. W. Rep. 55.) The evidence was of facts, the existence of' which, and the proof concerning which, might be wholly independent, of conversations with or admissions of the deceased.

The evidence sustains the verdict. If the testimony of the plaintiff was to be believed, — and he was corroborated by other evidence,. —the agreed consideration for the note and mortgage was a certain quantity of wheat sold, and a loan of $90 in money, for which loan-$10 was charged, and included in the note, in excess of the lawful rate of interest. While the price for which the wheat was soldi was not testified to, at least not directly, the testimony, if credible, does show that for the money to be loaned the parties, including-Spencer, first negotiated for a bonus of $10 in excess of lawful interest, and that this was carried into effect, that excess being included! in the note. If such was the fact, it is of no importance that a part, of the consideration for the note was the price of wheat sold.

There was no error in the charge of the court.

Order affirmed.

(Opinion published 53 N. W. Rep. 754.)  