#### Harris vs. Wicks.

Pleading. (1) *Consolidation of-actions*— New *answer not required.*(3) *Allegation of payment of*money— *Ya/rianee.*

Usury. (2) *Usurious contract*— Guaranty. (4) *Payment to guwantor; Ms liability to payee of note.*

*1991. Where separate actions were brought on two promissory notes, and a sufficient answer filed in each, the mere consolidation of the two actions into one, without change in the plaintiff’s allegations, does not render necessary a new or amended answer.

3. H. agreed with W. to advance the price of property sold by W. to 0. and take C.’s notes therefor with W.’s guaranty, provided he should receive interest at twelve per cent., the highest legal rate being ten per cent. The notes made and delivered called for only ten per cent., but the additional two per cent, was deducted from the amount advanced by H. to W. *Held,*in an action on the guaranty, that the notes were plainly usurious.

3. The complaint alleges payment and receipt of a certain amount oí money on the note; and the proof was that a United States bond was delivered and received at the current rate of premium, in lieu of money. *Held,*not a material variance.

4. The guarantor, having received back the property sold to the maker of the note, as payment thereof in whole or in part, would be bound to account to the payee for the amount so paid, in an action for money had and received ; and an amendment of the complaint in this action might be allowed, so as to enable plaintiff to obtain herein the benefit of such payment.

APPEAL from the Circuit Court for *Green Lake*County.

Action on two promissory notes. Defense, usury. The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.

*J. M. Fish*(with *Geo. D.*Waring, of counsel), for appellant:

1. The two original actions having been consolidated by an order of court, the established practice required the amendment of the pleadings, or else a trial of one of the actions, the other to abide the decision in the one tried. 4 Cow., 78 ; 5 Sandf., 665; 17 How. Pr. R., 228; 2 Paine & Duer’s Pr., sec. 4. 2. If the facts were as alleged in the answer, the notes were void. Laws of 1859, ch. 160, sec. 4; Laws of 1866, ch. 120; *Otto v. JDurege,*14 Wis., 571; *Towslee v. Durkee,*12 • id., 480 ; *Bode Co. Banlev.*Wooliscroft, 16 id., 26; *Lee v. Beckham,*17 id., 886 ; *Gillmore v. Woolcock,*13 id., 589. 3. There was testimony, upon which the jury should have been permitted to pass, that the answer was literally true, and that there was usury in the *200notes themselves, they being *made*in pursuance of a usurious agreement between the plaintiff and defendant. 4. If there had been no usury in the notes, and we adopt the theory that the notes were made for the benefit of the defendant, they having been transferred for a sum less than their face and legal interest, as between the guarantor and the purchaser, the contract ofguar-anty was usurious and void. 3 Wis., 725; 7 Wend., 569; 16 Wis., 26. And the variance between the answer and proofs, if any, should have been disregarded, as it could not have misled the plaintiff to his prejudice. R. S., ch. 125, §§ 33-35; 1 Abb. Pr. R. 237; 5 Abb. Dig., 323, 90; 1 Kern., 368. 5. Counsel argued that the court erred in refusing to allow an amendment to the answer, setting up the usury, except upon defendant paying to the plaintiff the amount of money actually received upon the notes, or any part thereof; and that the imposition of such terms is inconsistent with the policy and language of the statute relating to usury. Laws of 1859, ch. 160, secs. 4, 6; *Cooper v. Tappan,*4 Wis., 362-69.

*Chas. Aiken*(with A. *B.*Hamilton, of counsel), for respondent,

argued that it is well settled in this state that a party will not be allowed to amend his answer in order to set up usury, and it would seem to follow that where it is imperfectly set up in the original answer, an amendment will not be allowed in order to perfect that defense. *Jones, v.*Walicer, 22 Wis., 220: *Dole v.*Northrop, 19 id., 249. There was no error in requiring payment of the amount justly due as a condition of the amendment. *Newman v.*Kershaw, 10 Wis., 333; *Fulton Bank v.*Beach, 1 Paige, 429. 3. The evidence does not support the answers filed, because it shows *hut one*transaction; nor does it support the amended answer proposed, because it shows that it was not wholly a money loan, but a part of the payment was in government bonds. In pleading usury, defects in regard to certainty are to be held matters of substance. *Newman v.*Kershaw, 10 Wis., 333; *Beach v. Fulton*Bank, 3 Wend., 585. 4. An order granting or denying an amendment will not be reversed *201unless there has been an abuse of discretion. *Jones v. Walker,*22 Wis., 220.

LyoN, J.

One Seymour Countryman made two promissory notes payable to the plaintiff, one for $150 and ten per cent, interest, payable sixty days after date, and tbe other for $200 and ten per cent, interest, payable in one year after date. These notes are dated October 3, 1866. Before they were-delivered to the plaintiff, the defendant, by endorsement on the notes of the same date, duly guarantied the payment thereof; and the notes and guaranties thereon were then delivered to the plaintiff. The notes were not paid at maturity, and the plaintiff brought two actions against the defendant, one on each guaranty. These facts appear from the complaints in such actions, which are in the usual form of complaints in like actions.

The defendant interposed answers setting up the defense of usury to both actions, and alleging that each of said notes was made and delivered to the plaintiff upon the corrupt and usurious agreement between the plaintiff and defendant that the latter should pay and the former receive interest at the rate of twelve per cent, per annum for the loan of the money expressed in the said note; and that, pursuant to such agreement, *two*per cent, hi addition to the interest reserved in the note was deducted and reserved out of the principal sum of money loaned by the plaintiff to the defendant, and the balance only paid by him to the defendant. Such balance is stated in one case to have been $149.50, and in the other $196.

These, answers seem to be drawn with all of the particularity which the rules of law require in pleading the defense of usury.

After the issues were joined therein, the two actions were consolidated by order of court, on the motion of the defendant, and were tried as one action.

After such consolidation, the defendant applied to the court for leave to ñle an amended answer to the two complaints, evi*202dently tb.inlri.ng tbat it was necessary to do so in order to get tbe benefit of bis defense, previously interposed. Tbe answer wbicb be proposed to file is contained in tbe bill of exceptions, and seems to be little more than a consolidation of bis separate answers in tbe original actions. Tbe evidence given on tbe trial tended to sbow, and, I think we may safely say, did sbow, tbat before tbe notes were made tbe defendant was negotiating to sell Countryman a span of borses and a harness, and tbe plaintiff agreed with tbe defendant tbat if be made sucb sale, tbe plaintiff would discount tbe notes of Countryman to be given by bim for tbe property, provided tbe defendant would guaranty tbe payment of them, and make tbe interest up to twelve per cent, for tbe time tbey bad to run; tbat it was agreed between tbe parties and Countryman, tbat tbe latter should make tbe interest up to twelve per cent, to tbe defendant ; tbat Countryman purchased tbe property and gave bis notes therefor, wbicb included tbe extra two per cent, interest ; and tbat tbe agreements aforesaid ware fully carried out and consummated.

I. It requires neither argument nor citation of authorities to demonstrate tbat these notes are usurious and void, and cannot be enforced against any party to them. Tbe parties to tbe transaction seem to have left nothing undone to fix beyond question their usurious character. A usurious contract was made before tbe notes were executed, and tbe notes were given in pursuance of sucb contract; and, as if to save all question, tbey were made payable directly to tbe plaintiff, who, so far as it appears, was tbe first bolder of them. And not only tbat, but tbe plaintiff knew tbat tbey were usurious, and in fact be contracted before tbey were given, tbat tbey should be usurious.

II. We are unable to discover tbe necessity or utility of tbe proposed amended answer. Tbe authorities cited by counsel for tbe defendant to sbow tbat it became necessary to put in new pleadings after tbe original actions were consolidated, do not sustain bis position; and we know of no rule of practice *203wbicb requires it to be done. Bj tbe consolidation, tbe two complaints in tbe original actions became one complaint, with two counts oí causes of action separately stated therein; and in like manner tbe two answers became one answer, wherein tbe defense to each count of tbe complaint is separately stated.

Tbe court permitted tbe defendant to amend bis answer on terms. Tbe defendant refused to comply with tbe terms, and tbe action was tried on tbe original pleadings. *We*deem it unnecessary to decide whether such terms were lawfully imposed, or tbe reverse.

III. *We*do not think that there was any material variance between tbe allegations of tbe answer and tbe proofs on tbe trial, but that tbe usurious contract was proved substantially as it was alleged. Tbe fact that tbe defendant took a government bond from tbe plaintiff at tbe current premium, as so much money on account of tbe notes, is not, we apprehend, a variance from tbe averment that be received money therefor.

IY. It appears by tbe evidence that tbe defendant subsequently received back tbe horses wbicb be sold to Countryman, and for wbicb, in part, tbe notes in suit were given, but under what agreement or understanding does not appear. If be received them back in payment or part payment of such notes, I think to that extent be is liable to account to tbe plaintiff. I suppose tbe law to be that if Countryman has paid tbe notes or any part of them to tbe defendant, tbe plaintiff may recover of tbe defendant tbe sum so paid, not in an action on tbe notes, for they are void, but in an action for money bad and received. If such is tbe fact here, should tbe circuit court allow an amendment to tbe complaint to enable tbe plaintiff to obtain in this action tbe benefit of any payments on tbe notes made by Countryman to the defendant, and should tbe court allow such amendment without imposing very severe terms as a condition thereof, I think no valid exception could be taken thereto.

Tbe circuit judge directed a verdict for tbe plaintiff for tbe amount due upon tbe notes by their terms, and this appeal is *204from tbe judgment rendered upon sucb verdict. For tbe reasons above stated we are of tbe opinion that tbe judgment must be reversed, and a new trial awarded.

*By the Court*— So ordered.