#### DAVIS v. MARVINE.

(Supreme Court, Appellate Division, Third Department.

December 2, 1896.)

1. Evidence—Intention op Party—When not Admissible.

On an issue as to whether a transaction constituted a loan from plaintiff to defendant, where usury was pleaded as a defense, and the evidence was conflicting, it was error to permit plaintiff to testify as to her undisclosed intention in the matter. Landon and Herrick,- JJ., dissenting.

2. Same—Matters Outside op Issues.

Where the payee of a note sues on it, alleging ownership, which is admitted, evidence that the money for which the note was given was the property of an estate of which plaintiff was administratrix, and showing the character and amount of such estate, is irrelevant, and its admission is error. Landon and Herrick, JJ., dissenting.

Appeal from circuit court, Delaware county.

Action by Mary E. Jacobs against George E. Marvine. Judgment for plaintiff, and defendant appeals. Pending the appeal, plaintiff died, and her administrator, George B. Davis, was substituted as plaintiff.

Reversed.

Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Wagner & Fisher, for appellant.

Jerome I. Goodrich and George B. Davis, for respondent.

MERWIN, J.

On August 25, 1888, the defendant executed and delivered to Mary E. Jacobs, plaintiff’s intestate, his promissory note for $8,000, dated that day, and payable to the order of Mrs. Jacobs four months from date, at a specified bank, with interest. On the 25th August, 1889, a payment of $640 was made to Mrs. Jacobs, and like payments on August- 25, 1890, August 25, 1891, August 28, 1892, August 28, 1893. In December, 1894, this action was commenced by Mrs. Jacobs to recover the balance unpaid on the note. In the complaint, the making of the note by defendant, and its delivery to Mrs. Jacobs, are alleged, and she is alleged to be still the owner and holder. The answer admits the making and delivery and the ownership by plaintiff, and sets up the defense of usury. The defendant claims there was an agreement on his part to pay and on the part of Mrs. Jacobs to receive interest at the rate of 8 per cent. Upon the facts, the main question at the trial was whether there was any agreement on the part of defendant to 8 per cent. On the part of the plaintiff it was claimed that the defendant received the money for the purpose of loaning it for plaintiff to a manufacturing concern in Ohio at the rate of 8 per cent., which was there legal, and that defendant’s note was only as collateral security; that there was no agreement by him in*323dividually to pay 8 per cent., and that the payments made by defendant were understood by Mrs. Jacobs to be sums received by the defendant from the foreign concern. It was, in effect, found by the jury that there was no promise by the defendant to pay 8 per cent. We find on the facts no good reason to disturb the verdict.

It is, however, claimed by the defendant that erroneous rulings on the admission of evidence were made by the court to his (defendant’s) prejudice, and also that evidence offered on the part of the defendant and received was, in the course of the trial, so-characterized by the court as to prejudice the jury against the defendant. Upon the trial, Mrs. Jacobs, being called as a witness in her own behalf, and after stating what occurred between her and the defendant, was permitted, over the objection and exception of defendant, to answer the question, “Did you intend then and there to make an illegal and corrupt agreement with Mr. Mar vine?” Also, over like objection and exception, the question, “So there was no intention on your part to loan it to him?” By these questions the witness was permitted to testify to her undisclosed intent. The question whether the loan was to the defendant was a material one. The note and the receipts for the payments thereon indicated a loan to the defendant. The existence of such a contract did not depend on the undisclosed intent of either party. In Dillon v. Anderson, 43 íí. Y. 231, the question to a party defendant, “Did you intend to make an individual contract?” was held to be improper. In that case it is said by Judge Folger, in delivering the opinion of the court (page 236):

> “There are authorities that a witness may be asked his motive or intent in doing an act. See McKown v. Hunter, 30 N. Y. 625; Thurston v. Cornell, 38 N. Y. 281; Bedell v. Chase, 34 N. Y. 386. We think they hold no more than this: That where the doing of the act is not disputed, but is affirmed, and whether the act shall be held valid or invalid hangs upon the intent with which it was done, which intent, from its nature, would be formed and held without avowal, there he upon whom the intent is charged may testify whether he secretly held such intent when he did the act. Thus an insolvent assignor in trust, charged with the fraudulent intent to hinder and delay creditors, may be called im support of the deed of trust, and may say whether, when he made it, he had no fraudulent purpose. And one sued for a malicious prosecution may testify that in setting on foot the legal proceedings he believed that there was cause for them. And, as an extreme case,—which we are not willing to extend,—one against whom the defense of usury has been set up has been permitted to testify what was the intention in stipulating for a sum reserved out of the face of a note. But that an act should be held to have or not to have effect, and one party to it to be bound or not as the other party to it should, by his undisclosed purpose, have determined, is warranted by no sound principle.”

According to these views, it was not competent for Mrs. Jacobs to testify, as she was, in substance, allowed to do, that she had no intention to loan the money to the defendant. By the ruling admitting this, the jury were allowed to infer that Mrs. Jacobs’ undisclosed intention might control the case in her favor. In this view it cannot, I think, be fairly said that the ruling was not material. True, the jury might have inferred the same thing from the circumstances of the transaction as detailed by Mrs. Jacobs. There was, however, a flat contradiction on this subject between Mrs. *324Jacobs and the defendant. When, therefore, the jury were allowed to consider the undisclosed intention of Mrs. Jacobs as material on the subject, the court, by its ruling, emphasized its materiality, and it may well be said that the jury might have been by this improperly influenced to the prejudice of the defendant. We cannot, I think, say that they were not. It is also at least doubtful whether it was competent to allow Mrs. Jacobs to testify that she did not intend to make an illegal and corrupt agreement with the defendant.

Considerable evidence was given at the trial for the purpose of showing the relations of the parties as reflecting upon the transaction in regard to the note. It was shown that defendant some two years and upward prior to the giving of the note, had been appointed the committee of the person and estate of Ferris Jacobs, Jr., the husband of the plaintiff. Thereupon the plaintiff was permitted to put in evidence the inventory of the estate of Mr. Jacobs made by the defendant as committee, and filed by him on September 15, 1886, which was after the death of Mr. Jacobs. This was duly objected to by the defendant, and exception taken to its admission. It is difficult to see how this inventory, made about two years before the transaction in controversy, had anything to do with the matter in controversy between the plaintiff and defendant. Assuming that it was proper to show that the defendant had charge of the estate of Mr. Jacobs, it does not follow that it was proper to show the amount or character of that estate. Such evidence was foreign to the issue involved, and might have a tendency to mislead the jury. The complaint was upon a contract directly between Mrs. Jacobs and the defendant.. Her ownership was alleged, and admitted by the answer. There was evidence tending to show that the money for which the note was given, although there was nothing in the inventory about it, belonged to the estate of Mr. Jacobs; that he died in August, 1886, and that Mrs. Jacobs was soon after appointed administratrix of his estate. It is suggested on the part of the plaintiff that he is entitled to the benefit of the rule that the exacting of a bonus by an agent on the loan of money for his principal may not invalidate the claim of the principal. Fellows v. Longyor, 91 N. Y. 324, 330. The plaintiff is not, I think, in a position under the complaint to raise that question. Nor was the case tried upon any such theory. Under the pleadings, Mrs. Jacobs was the conceded owner of the note at its inception. The condition of her husband’s estate or the character of his property was wholly immaterial. If the estate of Mr. Jacobs is to be deemed the principal, it is not a party to this action, and the rule involved does not apply here. In ruling upon the admissibility of evidence in regard to the relations of the parties, the court, in commenting upon the receipts previously given in evidence by the defendant, used expressions which the defendant claims were prejudicial to his case with the jury. Quite severe expressions were used, such as may have improperly affected the jury. The complaint of the defendant in that regard seems to have some substantial basis. Hogan v. Railroad Co., 124 N. Y. 647, 649, 26 *325N. E. 950. He was entitled to a fair trial, although, the defense was usury.

Our attention is called to some other rulings but it is not necessary to here consider them. We are of the opinion that the defendant is entitled to a new trial.

Judgment and order reversed, and new trial ordered; costs to abide the event.

PARKER, P. J., and PUTNAM, J., concur.

LANDON, J.

I dissent. The plaintiff’s theory, which the jury,, by their verdict, sustained, was that, wishing to invest her money, she sought the advice of the defendant, and he undertook to invest it for her in Ohio securities at 8 per cent., the lawful rate in that state; and that until he could get the Ohio securities he would take her money, and give her his note for it, and secure it by bank stock. This he did, giving her the note in question, “with interest,”' and the certificates of bank stock, as collateral; that the defendant soon after brought and delivered to her certificates of stock in Ohio corporations, representing these to be the securities in question, and that they would yield her 8 per cent.; that he took away the bank stock, still leaving his note with her, as collateral. The Ohio stock that he delivered her was his own, and, we infer, was-not valuable. He subsequently paid her 8 per cent, for several: years. It was material to know whether this was a cover for usury, or whether the defendant imposed upon the plaintiff in the first instance, and led her to suppose that the 8 per cent, he was paying her was the proceeds of the Ohio stock. The intention of the parties was material. It was obscured by the circumstances, especially as they were sworn to by the defendant. It was, therefore, competent for the plaintiff to testify that she did not intend, to loan her money to the defendant, or—no objection being taken-to the form—to make a usurious agreement with him. Dillon v. Anderson, 43 N. Y. 231, does not hold otherwise. There the contract actually made was in writing, and spoke for itself. There was there no charge of fraud (Seymour v. Wilson, 14 N. Y. 567), or malice (McKown v. Hunter, 30 N. Y. 625), or usury (Thurston v. Cornell, 38 N. Y. 281; Bayliss v. Cockcroft, 81 N. Y. 363), or other crime in which the intent is the essential element under investigation and in doubt, but simply the question whether a party was bound by the contract he had signed. The opinion admits usury to be an exception to the rule there applied, and in Bayliss v. Cock-croft it is said that the authority of Thurston v. Cornell was not shaken in that respect by Dillon v. Anderson.

As to the admission of the inventory of the estate of plaintiff’s husband, made by the defendant, it was received to contradict defendant’s testimony about his relations with the plaintiff and plaintiff’s husband in his lifetime; the plaintiff’s testimony having been to the effect that, as he and her husband were intimate in their business and social relations, she naturally confided in him after her husband’s death. As the case was presented, we cannot say *326that this was absolutely irrelevant. There were exceptions to other testimony alleged to be irrelevant. In nearly every trial some irrelevant testimony will creep in, and, unless we can see that its tendency was to prejudice the party objecting to it, we ought to assume that the trial judge thought it safer to admit it, and trust to its inconsequence, than to exclude it, and thus run the risk of error in overlooking some other testimony which might malte it at least remotely relevant. I cite my observation and experience, not as authority for such practice, but as in harmony with it.

As to the “severe expressions” used by the trial judge, they were characterizations of the defendant’s acts in obtaining damaging receipts for interest from the plaintiff, qualified with the proviso that if the plaintiff’s version of the facts was true; but he also at the same time, in effect, said the receipts were fatal to plaintiff’s case, if defendant’s version was true. His language was plain and emphatic, but it conveyed a clear, and, I think, a true, idea of the situation, and we have no just occasion to reprehend it.. Plain words from the court, presenting the issue sharply and fairly, are very helpful to the jury. Moreover, I think the judgment was right.

HERRICK, J., concurs.