
    Nathan W. Palmer v. Joseph A. Yarrington.
    Under the plea of non-assumpsit, without affidavit, a defendant may give evidence to disprove the execution of the note on which suit is brought.
    The words “ I hereby give J. "W. Abell the liberty of making use of my name, if it will be of any use to him with his friends in Connecticut, to the amount of one thousand or fifteen hundred dollars, to borrow money. N.'W. Palmer,” are not a mere guaranty for the amount named, but confer a power' upon J. "W. Abell to sign the name of Palmer to a note for the money borrowed. ■
    Such power does not authorize a loan by J. W. Abell, as agent, to or for the-use of any other person.
    The validity of a note given in Connecticut is to be determined by the laws of that state, under which any contract reserving more than six per centum interest per annum is absolutely void.
    An exception to the judgment of a court below ruling out evidence can not be considered, unless such evidence is spread upon the record.
    The reasons assigned by a court’for its judgment are material, if the record show that such judgment was, in fact, correct.
    This is a writ of error to the supreme court in Trumbull county, allowed by the late supreme court in bank.
    *The original action in the common pleas was assumpsit, brought by Yarrington against Palmer on the following note:
    
      “ Norwich, April 1, 1845.
    “ On demand, for value received, we, the subscribers, jointly and severally promise to pay Joseph A. Yarrington fifteen hundred dollors, with interest.
    John Abell.
    N. W. Palmer.
    “Indorsed: J. ~W. Abell.” J. W. Abell.”
    The declaration contained a special count on the note, and also the money counts. The plea was non-assumpsit without affidavit.
    Upon the trial of the cause, which was to the court without the intervention of a jury, the plaintiff gave the note in evidence and rested.
    The defendant thereupon offered John W. Abell as a witness, who testified:
    That, on the first of April, 1845, in Norwich, Connecticut, he made arrangements with Yarrington, who was his uncle, and who resided in Connecticut, to procure $1500, and gave him the note sued on. Yarrington then made his own note for a like sum, payable some months after date at the Quinneburg Bank to the witness; and it was by him indorsed. Upon this he procured the fifteen hundred dollars, less the discount, from the bank.
    The witness offered Yarrington fifty dollars for the accommodation, which was received by Yarrington, who said he dare not take it for this accommodation, but “ he would call it for what he had done before.” This transaction was on the same day of the making of the notes and of the receipt of the money from the bank; but whether before or after, does not appear.
    This money, the witness states, belonged to his father. That it was paid on account of this accommodation of $1500. That Yarrington had been paid all former expenses, and that “ he made no pretense of having any claim for any previous accommodation, and had no such claim.”
    *The witness had frequently before this, procured money for his father, John Abell, from Yarrington, who was a stockholder in the Quinneburg Bank, and Yarrington was informed at this time that the money was for the use of John Abell, and it was applied to the payment of his debts in New York and Philadelphia.
    He also testified that the note given in evidence was made by him in Norwich; that he signed all the names, and that John Abell and Palmer, the defendant, were not present.
    Upon cross-examination, he stated that he had with him and exhibited to Yarrington the following paper, which had been written, signed, and delivered to witness by Palmer, in Ohio:
    
      “ Warren, March 14,1845.
    “I hereby give J. W. Abell the liberty of making use of my name, if it will be of any use to him, with his friends in Connecticut, to the amount of a thousand or fifteen hundred dollars, to borrow money. N. W. Palmer.”
    At the time he received this he had contemplated speculating in wool and raising money for that purpose. He had no other authority from Palmer to make use of his name than this paper nor did he, upon his return to Ohio, inform Palmer that he had made use of his name. There was no evidence that Palmer had any knowledge that his name had been signed to the note until it was sent to Ohio a year afterwards for collection.
    The defendant also made proof of the law of Connecticut, from “ an act to restrain the taking of usury,” as follows:
    “ Sec. 1. That no person or persons, upon any contract, shall take, directly or indirectly, for the loan of money or any goods, wares, or merchandise, or any projierty whatever, above the value of six dollars for the forbearance of one hundred dollars for a year, and so after that rate for a greater or less sum, or for a longer or shorter time; and all bonds, contracts, mortgages, and assurances whatever, made for the payment of any principal or money lent, or covenanted to-be *lent, upon or for usury, whereupon or whereby there shall be reserved or taken above the rate of six dollars for the hundred, as aforesaid, shall be utterly void.
    “ Sec. 2. Every person who shall take, accept, and receive, by means of a corrupt bargain, loan, or exchange, or deceitful conveyance, or by any other means, for the forbearance, or giving day of payment for a year of and for money or any other property above the sum of six dollars, for the forbearance of one hundred dollars for a year, and after that rate for a greater or less sum, or for a longer or shorter time, shall forfeit the value of the money or other property so lent, bargained, sold, or agreed for, one-half to him who shall prosecute to effect, and the other half to the treasurer of state.
    “ Sec. 3. And in any action brought on any bond, bill, or mortgage, or any contract whatever, it shall be lawful for the defendant to inform the court before which the action is pending, by filing h.is complaint with the clerk on the second day of the session of the court, that such contract was given on a usurious consideration ; and in that case the court shall proceed to enquire into the truth of such complaint, as a court of equity, and may examine the parties on oath, and may receive any other proper testimony; and if the plaintiff shall refuse to be examined on oath, he shall become non suit, and the defendant shall recover his costs. And if the court shall find that the contract was given upon usurious consideration, they shall proceed to adjust the same in equity, and shall give judgment for the plaintiff to receive no more than the value-of the goods, or the principal sum of money which the defendant received, without ‘ interest or any advance on the same.’ ”
    The plaintiff then gave in evidence the deposition of the cashier of the Quinneburg Bank, to prove payments by Yarrington of $44.83 on account of expenses, protests, and discounts, for renewals of previous notes of Yarrington on account of Abell. He also-proves the deposit of money, at different times, by Yarrington, which he said had been received from Abell.
    *He also offered certain letters of J. W. Abell to Yarrington, in evidence, which were objected to, and the objection sustained ; but the letters were not set out or made part of the bill of exceptions.
    The court of common pleas rendered judgment for the defendant. A motion to set aside the judgment and for a new trial was-made by Yarrington, the plaintiff, which was overruled by the court, and a bill of exceptions, setting out the testimony, was taken.
    Yarrington then prosecuted a writ of error to the common pleas in the supreme court of Trumbull county. At the August term, 1850, of the supreme court on the circuit, the judgment of the court of common pleas was reversed; and to reverse this judgment of the-supreme court, the present writ of error is brought.
    
      Barney & Taylor, for plaintiff in error.
    
      Tuttle & Sutliff, for defendant in error.
   Corwin, J.

It is proper, in the first place, to notice the proposition of counsel for defendant in error, that, unless the plea of nonassumpsit be verified by affidavit, the party can not introduce evidence to disprove the execution of the note.

By the first section of “ An act to amend an act entitled ‘An act dispensing with proof in certain cases,’ ” passed March 9, 1838, it is provided:

“ That upon plea of non est factum, offered by the person charged as the obligor or grantor of a deed, or plea of non assumpsit, or nil debet, offered by the person charged as the maker or indorser of any promissory note, or drawer, indorser, or acceptor of any bill of exchange, it shall not be necessary for the plaintiff to prove the execution of the deed, the making of the note, or the drawing or accepting the bill of exchange, upon which such suit is brought, or any indorsement thereon, unless the party offering such plea shall make affidavit of the truth thereof, or that any such indorsement 258] *was not made as it purports to have been, etc.” Swan’s Stat. 325.

Under the provisions of this statute, as construed in the case of Taylor’s Adm’rs v. Colvin, Wright, 449, it is claimed the court of common pleas erred in permitting the defendant in this case, under the plea of non assumpsit, without affidavit, to disprove the execution of the note upon which the suit is brought. It is said that unless the construction of this statute adopted in Wright’s Reports is adhered to, the plaintiff has no notice of such defense, and is taken by surprise, whereas, if the execution of the note were denied by the affidavit of the party, he would prepare himself to rebut the evidence introduced under the plea. But how is this practically? The statute does not require the party to make affidavit denying the execution of the note; but “ that the party offering such plea shall make affidavit of the truth thereof.” Now suppose the party to have made affidavit of the truth of his plea of non assumpsit, it certainly furnishes no farther notice of this defense than is furnished by the plea itself, and still the provisions of the statute would have been strictly complied with. Under the plea of non assumpsit, which originally raised. only the question whether the liability charged had, in fact, ever been contracted, it is now well settled that a party may give in evidence anything which tends to defeat or limit the right of recovery against him at the time of the trial. Of no one of which defenses, the plaintiff could be any more particularly advised by appending the affidavit provided for in the act before referred to. This objection lies rather to the character of the plea itself—to all pleas of the general issue—than to the want of an affidavit, and furnishes a most insufficient and unsatisfactory reason for adopting the construction contended for.

At common law, and without the act referred to, the plaintiff, upon offering his note in evidence, must prove its execution; and this statute, as its title implies, merely dispenses with such proof, unless the plea which puts its execution in issue is verified by affidavit, and makes no other or further ^change in the rules of evidence; so that, although, since the statute, a party may offer his note in evidence without proof of its execution, yet he offers it just as he offers any other item of evidence—liable to be met and defeated by such evidence as the defendant may be able to produce. We are all of opinion that the act in question was misconstrued in the case of Taylor’s Adm’rs v. Colvin, and that the court of common pleas did not err in admitting the evidence under the plea, without affidavit. It being made to appear, by the evidence thus introduced, that the note upon which the suit is brought was executed at Norwich, Connecticut, by John W. Abell, the next question arising in the case is as to the authority of said Abell to sign the name of Palmer to the note, which authority is to be derived solely from the following paper, to wit:

“Warren, March 14,1845.

“I hereby give J. W. Abell the liberty of making use of my name, if it will be of any use to him with his friends in Connecticut, to the amount of a thousand or fifteen hundred dollars, to borrow money. N. W. Palmer.”

This paper should be “ construed in the light of all the surrounding circumstances which induced its execution, as well as with a reference to the condition and situation of the parties.” Hilderbrand v. Fogle, 20 Ohio, 147. J. W. Abell was the brother-in-law of Palmer, about to make a trip to the east, contemplating some transactions in the wool trade, as he testifies, and Palmer doubtless intended to do what he had done by the express terms of his written authority, giving “ J. W. Abell the liberty to make use of his name, if it would be of any use to him, with his friends in Connecticut, to borrow money, to the amount limited in the writing.” And inasmuch as the name of Palmer, in the ordinary course of business, could not be used without signing it to the paper by which the transaction was to be evidenced, we think it clear that the right to use the name to borrow money at a place distant from the residence of the party conferring the right, involved the right to sign such *name to a note for the payment of the money borrowed. Without any strained construction, and by the obvious import and effect of the words employed, a power was given to J. W. Abell to sign the name.

The court of common pleas, in reciting upon the record, as a reason for the decision, that the paper above quoted was merely a guaranty, and created no powers, expressed an erroneous opinion but the reasons given by the court for its judgment are immaterial, if the record shows that the judgment was, in fact, correct.

It is well settled that a guarantor or surety can only be held by the strict terms of the obligation into which he has entered. If not within the letter, he can not, by implication or otherwise, be made’ ■liable; New Haven Co. Bank v. Mitchell, 15 Conn. 206; Field v. Rawlings, 1 Gil. 581; Walsh v. Bailes, 10 Ind. 180; Miller v. Stewart, 4 Wash. C. C. 26; Bank of Washington v. Bennington, 2 Penn. 27; Blair v. Perpetual Ins. Co., 15 Miss. 559; The State v. Medary et al., 17 Ohio, 565; McGovney v. Ohio, 20 Ohio, 93.

Considering the paper as a power, in the opinion of a majority of the court, it only authorized the use of Palmer’s name to secure a loan to John W. Abell. It did not warrant the use of his name to secure the payment of a loan made to or for the use of any other pierson. Yarrington knew that the name of Palmer was signed to the note which he took, by John W. Abell, in the absence of Palmer ; and even if the paper conferring the power had not been exhibited-to him, he is held to know the extent of the power which the agent had. But it is shown that the paper was in fact exhibited to him by John W. Abell, and he can not claim that any further authority was thereby conferred than is warranted by a fair construction of its terms. He was bound to know its legal effect, and therefore must have known that it did not authorize John W. Abell to sign the name of Palmer to the note in question, given to secure a loante, or for the use of John Abell. Story’s Agency, sec. 72.

*With this view of the case, it is not necessary to notice at ■ length the defense of usury under the statute of Connecticut, hereinbefore recited. It is true, however, that the validity of a contract, is to be determined by the law of the place where made; and if void by those laws, it is void everywhere. We are all satisfied, from the evidence spread upon the record, that the contract was usurious, both as to the sum of $50 paid to Yarrington at the time for the accommodation, and as to the amount of interest accruing on this note, from its date to the maturity of the note given by Yarrington to the bank upon which the money was drawn. And, in the absence of any construction of the statute of Connecticut for the preention of usury by the courts of that state, we would have no-difficulty in holding that, under the provisions of the first section of said statute, the contract upon which this loan was made was-absolutely void. Although, under the third section of said act, the party borrowing the money, if he is obliged to have discovery from, the other party in order to show usury, will be compelled, upon principles of equity, to pay back the amount of money which he-had received, without any interest, yet the note given upon such usurious loan is absolutely void; and no liability can attach to a surety on such note, either at law or in equity. So it has been held by the courts of that state; and that the defense of usury may well be made under a plea of general issue. Culver v. Robinson, 3 Day, 68; Smith v. Beach, Id. 268; Mitchell v. Preston, 5 Day, 100.

The bill of exceptions in this case also shows that the court of common pleas ruled out certain letters of John W. Abell, which were offered in evidence by the plaintiff, for the purpose of impeaching him as a witness. The letters may have been material and proper for that purpose; but the evidence thus rejected is not made part of the bill of exceptions; and we have no means of determining whether they were properly or improperly rejected. The presumption is always in favor of the decision sought to be reversed, and error will not be presumed, but must be made to appear. *Notwithstanding the court of common pleas may have assigned an untenable reason for its conclusion, this record shows that a complete and perfect defense to the action was presented, and that the judgment of said court was substantially correct; and the judgment of the supreme court reversing said judgment of the court of common pleas is therefore reversed with costs, and the judgment of the court of common pleas is affirmed.

Banney, J., having been of counsel, did not sit in this case.  