
    W. O. Funston, for use of John M. Wolf et al., Appellant, v. J. A. Shirey et al., Appellees.
    
      Verdicts—when mot disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action in debt. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    John B. Eden, for appellant.
    John E. Jennings and W. K. Whitfield, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an action in debt upon a replevin bond executed by the defendants, J. A. and W. S. Shirey, to the plaintiff, W. O. Funston, as sheriff, for the use of John M. Wolf and John T. Dawdy, in an action of replevin instituted by said J. A. Shirey against" said plaintiffs, to recover the possession of certain chattel property which had theretofore been seized by the said Funston as sheriff under and by virtue of a chattel mortgage thereon given by said Shirey to said Wolf to secure the payment of certain promissory notes, the principal of which aggregated the sum of $437.40. The replevin suit was dismissed by said Shirey without a trial upon the merits, and upon his failure and refusal to return the said chattel property this suit was instituted upon said replevin bond. To the declaration on the bond the defendants filed a plea of non est factum, and also filed their notice of proof of certain special matters which would be relied upon in defense of the action. Such notice of special matters so relied upon by defendants set forth, in substance, that they would make proof that the replevin suit was disposed of without a trial upon the merits; that the chattel property therein involved was the property of J. A. Shirey and that John M. Wolf was claiming the same under a chattel mortgage; that the notes which said chattel mortgage was given to secure, were certain of a series of notes secured by chattel mortgages which had been given by said Shirey to J. M. Wolf, W. H. Whitaker and Grace Cunningham, and that each of the said notes in said series were tainted with usury and unlawful commission charges of all of which the said Wolf had notice and knowledge; that prior to instituting said replevin suit said Shirey had tendered to said Wolf the sum of $20 which sum was all that was legally due said Wolf upon said notes. Upon the trial of the issues by a jury there was a verdict in favor of the defendants on the issue of tender, upon which verdict the court entered judgment against the plaintiffs for costs.

At the time of the transactions here involved the defendant, J. A. Shirey, was a farmer residing near Lovington, Moultrie county; the beneficial plaintiff, John M. Wolf, was a chattel mortgage loan broker residing in the city of Sullivan in said county; W. H. Whitaker was a lawyer and chattel mortgage loan broker residing in the city of Shelbyville in Shelby county; and Grace Cunningham, whose relation to the transactions involved is hereafter disclosed, was a stenographer and clerk in the office of said Wolf. There is evidence tending to show, and the jury were warranted in finding, that on May 2,1905, J. A. Shirey applied to Wolf for a loan of money to be secured by a mortgage upon certain chattel property and that said Shirey then executed his note for the sum of $146 with interest at 7 per cent payable to W. H. Whitaker, on September 2, 1905; that Whitaker remitted to Wolf the amount of said note less ten per cent; that on August 28, 1905, said first note having not been paid and without the advancement or loan to Shirey of any additional sum of money, he then executed another note and mortgage securing the same to Whitaker for the sum of $166.91, which last mentioned note and mortgage was made to mature November 28,1905; that on said last named date said Shirey made a payment of $40' or $45 upon said note and in renewal thereof executed another note and mortgage securing the same for the sum of $166.91 maturing February 28, 1906; that on March 2, 1906, said Shirey in renewal of the' last mentioned note and mortgage executed two'notes aggregating the principal sum of" $233.10 payable to Grace Cunningham on August 20, 1906, and also then executed a chattel mortgage securing said notes; that Grace Cunningham then made no loan of any money to said Shirey and that said notes were made payable to her to serve some purpose of Wolf or Whitaker; that on July 30, 1906, Shirey executed two notes payable to the order of Grace Cunningham, one for the sum of $32 payable September 1, 1906, and one for $251.10 payable November 1,1906, together with a chattel mortgage securing the payment of said notes, which said notes and mortgage were given in renewal of the notes maturing August 20,1906, and included a charge of $50 as commission for procuring a renewal of' said last mentioned notes; that on October 31, 1906, and in renewal of the two notes dated July 30-, 190'6, payable to" Grace Cunningham, said Shirey executed a note for the sum of $201.10 payable to W. H. Whitaker, on March 1, 1907, together with a chattel mortgage securing the same, and also then paid to Wolf $138.32 to be applied as a payment upon the note maturing November 1, 1906; that on February 28, 1907, said Shirey executed two notes payable to W. H. Whitaker, one for $53.43 due March 28, 1907, and the other for $200 due July 1,1907, together with a chattel mortgage securing said-notes, which said notes and mortgage were given in-renewal of the notes maturing March 1, 1907, and included a commission of about $50 to Wolf or Whitaker-, or both of them, for procuring such renewal; that on July 2,190-7, said Shirey executed two notes, payable to W. H. Whitaker, one for $115 due October 1,1907, and the other for $224.67 due December 1, 1907, together with a chattel mortgage securing the same, which notes and mortgage were given in renewal of the two notes maturing respectively March 28, 1907, and July 1, 1907, and included an additional commission for procuring such renewal; that on November 30, 1907, said Shirey executed two notes payable to W. H. Whitaker, one for the sum of $224.67 maturing December 15, 1907, and the other for the sum of $161.36 maturing December 30, 1907, together with a chattel mortgage securing said notes, which notes were given in renewal of the two notes maturing October 1, 1907, and December 1,1907, respectively, and included another commission for procuring such renewal; that on December 19, 1907, said Shirey executed three notes payable to John M. Wolf, one for the sum of $161.36 due January 1, 1908, one for the sum of $44.44 due February 15, 1908, and one for the sum of $224.67 due January 10, 1908, together with a chattel mortgage securing the same, which said notes and mortgage were given in renewal of the notes maturing December 15, and December 30, 1907, and included an additional charge as a commission for procuring such renewal. The notes and mortgage last described constitute the culmination of the financial transactions between J. A. Shirey and Wolf and Whitaker and are the notes and mortgage involved in this litigation.

It is established by the evidence beyond controversy that the relation of principal and agent existed between Whitaker and Wolf and that the latter with full knowledge of all the facts so manipulated the transactions with the knowledge of Whitaker, that he appeared alternately in the role of principal or agent as he conceived best suited his purpose. We think the jury were justified in finding that the notes in question were almost wholly tainted with usury and that the tender of $20 made by J. A. Shirey was all that was legally recoverable thereon.

There is no error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.  