#### Gill vs. Rice.

An equitable action where the evidence is all incorporated in the case or bill of exceptions, must be determined by this court according to law and the equity of the case as it appears from such evidence; and the judgment of the court below may be affirmed although that court may have committed errors in its instructions to the jury, such as, in a legal action, would render it necessary to reverse the judgment.

In equitable actions, specific questions may be referred to a jury; but the courtis no more bound by the finding of the jury upon such issues, than it was before the adoption of the Code.

In such an action, it is irregular for the court before which the same is tried, to refer the whole case to a jury, for its decision.

Since the repeal of chap. 55 of the laws of 1856, by chap. 160 of the laws of 1859, a tender of the principal sum loaned is not necessary to enable a debtor to avail himself of the defense of usury.

under the Code, facts creating ’an estoppel *m pais*should be stated in the pleading.

Where, in a pleading designed to set up an estoppel *mpais,*the allegations were so drawn as, when strictly construed, to show that there was no estoppel, and for that reason evidence offered at the trial to show such estoppel was objected to, the court should not have admitted such evidence withoutfirst requiring the pleading to be so amended as to conform to the facts intended to be proven.

But where the circuit court admitted the evidence without requiring such amendment, and the admission was excepted to, but the appellant was not taken by surprise, and the action was fairly tried on its merits, and the judgment therein was according to equity, this court affirms the judgment, and remands the cause with directions that such defective pleading be so amended as to conform to the facts proven.

The law will apply a payment upon a usurious contract, where no directions are given by the debtor, to the extinguishment of the principal sum loaned, when by law such sum can be collected.

Where a payment has been applied upon usurious interest by the direction of the debtor, he may afterward repudiate such application, and insist upon applying such payment to the legal demands of his creditor.

A agreed to purchase a note and mortgage past due, if, on inquiry of the maker, they should be found free from objection; and having been subsequently informed by the maker that the sum which appeared by the face of the instrument, and the indorsements thereon, to be due, was in fact due, and that he would pay it, purchased the same without the knowledge of any usury therein, and paid a full and valuable consideration therefor. *SelA,*that the maker was estopped from claiming that moneys previously paid by him, sufficient to extinguish the principal, had been unlawfully applied, by the mortgagee, upon usurious interest, and from denying for that reason, that such sum was in fact due.

APPEAL from tbe Circuit Court for *Wa/wpacca*County.

This was an action to restrain the assignee of a mortgage (with power of sale), from selling the mortgaged premises, *550and to have tbe mortgage, and tbe note secured thereby, delivered up and cancelled, on tbe ground tbat tbe note was given for a loan of money at usurious interest, and tbat tbe assignee took tbe note after it was due, and tbat tbe principal sum loaned bad been paid. Tbe defendant denied all knowledge of tbe usury, and denied tbat tbe whole of tbe principal sum loaned bad been paid, but alleged tbat there was due on tbe note *$64 04,*with interest from January *31,*1860. Tbe answer also alleged tbat a few days after tbe defendant purchased said note and mortgage, be informed tbe plaintiff of said purchase, and the plaintiff told him there bad been paid on said note $151, and tbe balance which it called for was then due, and was over $100, and he would pay it tbe next month ; tbat tbe plaintiff said nothing at tbat time about usury ; and tbat tbe defendant, relying on this statement, caused tbe assignment of said mortgage to him to be recorded, and paid Gibson, tbe assignor, a small balance then dire on tbe consideration therefor. Tbe answer further alleged tbat for several weeks previous to tbe assignment of said note and mortgage to tbe defendant, tbe plaintiff knew tbat be designed purchasing them, and frequently met and talked with tbe defendant, but never informed him of tbe alleged usurious character of tbe note and mortgage.

Tbe court, at tbe request of tbe defendant, and against tbe objections of tbe plaintiff, directed tbe case to be tried by a jury. Tbe plaintiff proved tbe usurious character of tbe original transaction, and tbe payment of an amount equal to tbe principal sum loaned, of which *$40 were*paid to tbe defendant, after tbe assignment to him.

Tbe evidence on tbe part of tbe defendant is sufficiently stated in tbe opinion of tbe court.

Tbe plaintiff asked tbe court to give certain instructions to tbe jury, of which only tbe 3d and 4th need be noticed. These were, “ tbat a general payment by tbe debtor to tbe creditor, without any application by tbe debtor, should be applied to tbe payment of demands not forbidden by statute, and tbat if a general payment was made upon tbe note in this case, tbe defendant would not have bad tbe right to apply tbe same on usurious interest;” and “tbat tbe law *551will first apply a payment by a debtor on a usurious contract (wben there was no agreement of tbe parties or direc-. tion by tbe debtor as to bow it should be applied,) to tbe payment of tbe sum actually loaned.” These instructions tbe court refused, but told tbe jury they must determine whether tbe contract was usurious as alleged in tbe complaint, and “ that if tbe contract was usurious, it was competent for tbe plaintiff, in making tbe payments be did make, to direct tbe application either to tbe principal or interest; and if be made no application, it was competent for tbe bolder of tbe note to make tbe application; but if neither party made any application before tbe commencement of tbe suit, tbe law would apply tbe payments upon tbe lawful demand, and not upon tbe usurious interest.” Tbe court also instructed tbe jury, that tbe plaintiff could not avail himself of tbe statute against usury, unless, before tbe commencement of tbe suit, be bad paid or tendered tbe whole amount of tbe principal sum loaned; and “ that if tbe defendant, before purchasing tbe note absolutely, was informed by tbe plaintiff that tbe note was right and would be paid, and, relying upon such statement, purchased tbe note for a valuable consideration, tbe plaintiff cannot recover.” Tbe verdict was as follows: *“We,*tbe jury, find no cause of action.” To this finding tbe plaintiff, before tbe jury were discharged, excepted, and asked tbe court to instruct tbe jury what were tbe issues raised upon tbe pleadings, and direct them to find distinctly and separately upon tbe issues of fact raised upon tbe pleadings, which tbe court refused, and tbe plaintiff excepted.

Tbe plaintiff moved for a new trial, because tbe verdict was contrary to tbe evidence, and did not pass separately upon all tbe issues of fact made by tbe pleadings ; because it assumed to decide tbe whole cause of action, both issues of law and of fact; because tbe jury did not follow tbe instructions of tbe court, and find whether tbe contract was usurious as claimed by tbe plaintiff; *“*because any facts or circumstances destroying tbe plaintiff’s cause of action, and not raised-by tbe pleadings,” should have been found specially, and tbe facts as found stated, so that tbe *552court and not the jury should apply the law; and because the fact as to bow much of the principal sum loaned bad been paid, should have been specially found, as the court might yet restrain the collection of more than the principal sum.

Motion denied, and judgment for the defendant.

*John Fordyce,*for appellant:

The defendant could not avail himself of an estoppel, even if proven, which was not set up in the answer. *N. Y. Central Ins. Co. vs. National Ins. Co.,*20 Barb., 468; *Brazillvs. Isham,*2 Kern., 9 ; *Cailin vs. Gunter,*1 Duer, 253 ; *Balcer vs. Bailey,*16 Barb., 57; *Fay vs. Grimsteed,*10 id., 821; *Field vs. Mayor of N. Y., 2*SelcL, 179; *Ferguson vs. Ferguson,*2 Corns., *860;*id., 506; 5 Wis., 537. 2. The plaintiff’s payments could be applied only upon the legal demands of the holder of the note, i. e. on the principal, and not on usurious interest. 1 Am. Lead. Cases, 280; *Caldwell vs. Wentworth,*14 N. H., 431; *Bancroft vs. Dumas,*21 Yt, 456; *Bartholomew vs. Yaw>*9 Paige, 165; *Stone vs. Talbot,*4 Wis., 442. 3. This being an equitable action, the court should have required the jury to find the issues of fact only. B. S., chap. 132, sec. 6. And the verdict in this case not being in accordance witb the testimony on the issues of fact, and no estoppel being either •pleaded or proven, this court will reverse the judgment, according to its decision in *Johnson vs. Johnson,*4 Wis., 135.

*Browne & Dreutzer,*for respondent,

contended, among other things, that the plaintiff could not have the benefit of the defense of usury, until he tendered the principal sum loaned; that inasmuch as he did not tender the whole principal at the time when he paid $151 on the note, the interest remained a legal claim against him, and therefore a part of that payment was lawfully applied upon the interest then due, and the same reasoning applied to the second payment. 2. An estoppel *in pais*cannot be pleaded, but is given in evidence. *Welland Canal Co. vs. Hathaway,*8 Wend., 483; 19 Johns., 490 ; 1 Gilbert’s Ev., 87.

April 10.

*By the Court,*

DixoN, O. J.

If this were a legal instead of an equitable action, there can be no doubt that we should be *553obliged to reverse tbe judgment and award a new trial for errors occurring in tbe instructions of tbe judge to tbe But as it is a purely equitable proceeding, in wbicb we must review tbe facts as well as the law, and as tbe proofs taken are all reported in tbe bill of exceptions, it must be determined according to tbe law and equity of tbe case as they appear to us from tbe testimony taken. Tbe court below, somewhat irregularly as we think, referred tbe whole issue to tbe decision of a jury. Such issues are properly no more triable by a jury now, than they were before tbe adoption of tbe Code. And although specific questions of fact arising in them, may now, as before, be sent to a jury, yet tbe finding of a jury is not now, any more than it was then, conclusive upon tbe court. Tbe duty still devolves upon tbe court to determine tbe case according to its convictions of tbe law and tbe facts. We must so decide tbe present case, and if by so doing it appears that- tbe errors committed in tbe charge do not affect tbe final result, they must be disregarded.

It is clear that tbe court was wrong in refusing tbe third instruction asked by tbe counsel for tbe appellant, that a general payment by a debtor to a creditor, without any application by tbe former, should be applied to demands not forbidden by statute, and that if such payment were made, tbe creditor would have no right to apply it upon usurious interest. Tbe contract to pay usury being void, it could not constitute an indebtedness to wbicb tbe creditor could apply tbe payment. Tbe same is true of tbe refusal to give tbe fourth instruction asked by tbe same counsel. Tbe law in such cases will apply a payment upon a usurious contract, when no directions are given by tbe debtor, to tbe extin-guishment of tbe principal sum loaned, when by law such sum can be collected. Tbe judge was likewise ,wrong in charging tbe jury that tbe appellant could not avail himself of tbe statute against usury, until he bad first paid or tendered tbe whole amount of tbe principal sum loaned. It has frequently been decided by this court that since tbe repeal of chapter 55, Laws of 1856, by chapter 160, Laws of 1859, no payment or tender of tbe principal sum loaned was necessary. *Root vs. Pinney*[11 Wis., 83], and *Wood vs. Lake*
      *554
      *\.an^*P- 84]. He also erred in instructing tbem that if no application was made by the debtor, it was competent for the creditor to apply the payment to the usurious interest contracted to be paid. The reason for this has already been given. And even if such application had been made with the assent and by the direction of the debtor himself, he would still be at liberty to repudiate it, and have the money applied in payment of the principal sum loaned. See *Wood vs.*Lake, *supra,*and cases there cited.

But notwithstanding these errors, there is one feature of the transaction which we think is decisive of the merits of the controversy between these parties. It is the estoppel which was created by the declarations of the appellant to the respondent, made before the latter consummated the trade with Gibson for the note and mortgage in question. It conclusively appears from the evidence of the respondent and three other witnesses, who are uncontradicted, and whose testimony is in part corroborated by that of the appellant himself, that the respondent purchased the note and mortgage of the mortgagee, Gibson, without notice of the usurious taint or agreement, and that he paid therefor a full and valuable consideration; that he took them at first upon condition, and with the privilege of returning them, if it should be ascertained that they were in any way defective; and that whilst he so held them, he applied to the appellant, who informed him that there was $100 or over due upon them, being the sum then and now claimed to be due, with the interest, and that he should pay it as soon as he received some money which was due him from others. The appellant soon after completed the trade, and took the note and mortgage absolutely. It cannot be questioned that under the circumstances this admission constituted a perfect estoppel *in pais*against the appellant, and that he cannot be permitted to retract it against the respondent. The only difficulty arises from the imperfect and inconsistent averments of the answer. It is evident from the answer that the pleader relied upon and intended to set up the facts showing the estoppel, but in doing that, he has so framed his allegations that, strictly construed, they show that there was no estoppel. The evi*555dence was for tbis reason objected and excepted to by tbe appellant. Tbe court, acting without doubt on tbe intention of tbe pleader, and tbe fact tbat it was not claimed tbat tbe appellant was surprised, admitted it, probably on tbe ground tbat tbe variance was immaterial. Tbe statute (sections 33 and 34, chapter 125) goes a great ways in removing such objections, where it is not made to appear tbat tbe adverse party is misled, and confers a large discretion on tbe courts in directing tbe facts to be found in accordance with tbe evidence, or in amending the pleadings so as to conform them to tbe proofs made. But we think it would be going too far in tbis case, to disregard tbe variance and say tbat tbe judgment should stand, without an amendment of tbe answer according to tbe facts éstablished. Tbe judge should have ordered tbis to be done upon tbe trial. But since it is not pretended that tbe appellant was taken by surprise, or tbat tbe action was not, in tbis respect, fairly tried on its merits, we shall not, because of such omission, reverse tbe judgment, which upon tbe whole case is right and should be sustained. We shall affirm it, and direct tbe cause to be remanded, and tbat tbe answer be amended according to tbe facts proved. 1

Tbe position of tbe defendant’s counsel, tbat tbe variance may be disregarded because an estoppel *in pais*need not be pleaded, is incorrect. It was true; at tbe common law (8 Wend., 483), but is not now. The Code requires *the facts*constituting tbe cause of action or ground of defense, whatever they may be, to be succinctly and clearly stated in tbe pleadings.

Ordered accordingly.