Page:North Dakota Reports (vol. 3).pdf/197

 knowing what the jury found to be the fact in this regard. But whatever amount, if any, the jury found had been so advanced, must be first deducted from the payments, and the balance, only, applied on the notes. Respondent claims that the payments made, and as to which there is no conflict in the testimony, were sufficient to extinguish all legal claims held by Mears againtagainst [sic] him, and that at the time of the execution of the note of April 2nd, 1891, he owed Mears nothing. It is averred in the answer, and respondent's testimony supports the averment, that the original note of $633.65 was in fact usurious; that respondent received $465.65 on said note, and no more; and that the excess, to-wit: $168, was simply an usurious bonus. There is no evidence in the abstract that contradicts this, but there is documentary evidence tending to corroborate it. The jury would have been unwarranted in finding the fact otherwise. The court instructed the jury that, under the law at, the time said note was given, “any person receiving, retaining, or contracting for any higher rate of interest than 12 per cent. per annum forfeits all the interest so taken, received, retained, or contracted for, and when the note is sued on the plaintiff can recover only the principal.” Under this instruction the jury could consider that note as for $465.65, and no more. The small notes amounted to $319.60, making a total of $785.25 to be paid without reference to the cash advances. The indorsement on the note made by Whited & Johnson amounts (interest and principal indorsed separately) to $245.50. It is undisputed that the wheat checks delivered by respondent to Whited & Johnson at and prior to the making of such indorsement sold for $397. A part of the indorsement on the note at that time reads, “Balance wheat for atty. fee, Eaton suit, as per contract,” and there was evidence that Mr. Whited at one time acted as attorney for respondent in a suit with one Eaton. But respondent testified that he owed Mr. Whited nothing at that time as attorney's fees, or in any other capacity, and that he repeatedly asked to see the note on which the indorsement was made, but that his request was always evaded in some manner,