Culver v. Wilbern Bros.
Supreme Court of Iowa
Appeal from Osceola Circuit Cowrt. Action upon a promissory note. The defendant's plead usury. Previous to the execution of the note in suit, the plaintiff held a larger note, executed by one Chambers as principal and the defendants as sureties, which note was usurious. Before its maturity, the defendants took it up, paying a part of the amount thereof in money, and giving their note for the balance. This action is brought upon the latter note.
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Appeal from Osceola Circuit Cowrt. Action upon a promissory note. The defendant's plead usury. Previous to the execution of the note in suit, the plaintiff held a larger note, executed by one Chambers as principal and the defendants as sureties, which note was usurious. Before its maturity, the defendants took it up, paying a part of the amount thereof in money, and giving their note for the balance. This action is brought upon the latter note. The court sustained the plea of usury, and the plaintiff appeals.
1Opinion of the CourtAdams, J.
i. usvut: suretyship. We think that the transaction by which the defendants took up the original note was either a payment or purchase, and that in either case the defendants cannot maintain the plea of usury. What the defendants’ theory is does n0* Tery distinctly appear; but they speak of the note guy. as a substituted note. We presume that their theory is, that the note was given by way of renewal, and that it is therefore subject to the plea of usury, upon the same ground that the original note would be. If the note was given by way of renewal, it would doubtless be subject to the plea of…
2Cases cited2 opinions
- Rodman v. HeddenNew York Supreme Court · 1833
- Walker v. LathropSupreme Court of Iowa · 1858
3Cited by3 opinions
- Gund v. BallardNebraska Supreme Court · 1907
- Gund v. BallardNebraska Supreme Court · 1905
- Palmer v. CarpenterNebraska Supreme Court · 1898