W. McD. CUTHBERTSON v. J. A. AUSTIN.

(Filed 13 April, 1910.)

1. Usury — Element of Oppression.

Involved in the charge of usury is the idea of illegal advantage or oppression, and it is competent to offer testimony of dealings or communications between the parties which tend to strengthen this element in the charge.

2. Same — Evidence.

In an action against a mortgagee of plaintiff’s land, consisting of several tracts, to recover a usurious charge of interest by his failing to give proper credits on the principal sum out of payments made in excess of the legal rate, it is competent for plaintiff to show that he had had offers of purchase of each of the tracts in a sum total of more than sufficient to pay the mortgage debt, and that the defendant’s refusal to release the mortgage lien as to each caused a failure of the various sales.

3. Evidence — Contradiction—Declarations—Witness—Character.

The declarations of a witness made to others, who corroborate them on the witness stand, are competent by way of corroboration when- the testimony of the witness is contradicted, though his credibility and character have not been directly attacked.

Appeal from W. J. Adams, J., at November Term, 1909, of UNION.

The action was brought to reform a mortgage and to recover damages for breach of the reformed contract, and for usury. His Honor instructed the jury to answer the issue as to mistake in the mortgage in the negative; and the contest was waged on the allegations of usury. The plaintiff’s evidence tended to show that there was a considerable amount paid by plaintiff to defendant in excess of the amount loaned and the legal rate of interest; and the evidence of defendant tended to prove the contrary. The questions involved were submitted, under proper instructions, to the jury, and they answered the issues in favor of plaintiff, finding that defendant had knowingly collected and received more than the legal rate of interest, and the amount paid and received, as interest was $500. There was judgment on the verdict for double the amount of interest paid, as provided in see. 1951, Rev., from which judgment the defendant appealed to this Court.

Bedwine & Silces for plaintiff.

A. M. Stack and J. J. Parker for defendant. •

Manning, J.

The first four exceptions are taken to his Honor’s permitting the plaintiff to give in evidence offers to *337him for tbe several traots of laud included in tbe mortgage to tbe defendant, wbieb offers were communicated to tbe defendant. Tbe aggregate amount of these offers was more than sufficient to pay tbe mortgage debt, and tbe offers were made by persons able to comply therewith. Tbe defendant declined to permit plaintiff to make any of tbe sales, by refusing to release tbe lien of tbe mortgage to tbe purchaser. Tbe evident purpose of this evidence was to show that tbe defendant was pursuing a scheme, not so much to obtain payment of tbe amount legally' due him, as to acquire plaintiff’s land by oppressive methods. There was evidence, which tbe jury has found to be amply sufficient to sustain tbe charge of tbe plaintiff, that tbe defendant took advantage of bis condition by knowingly taking, receiving and reserving a greater rate of interest than is permitted by law.

Involved in tbe charge of usury, is tbe idea of illegal advantage or oppression, and we do not see why it is not competent to offer testimony of dealings or communications between tbe parties, which tend to strengthen this element in tbe charge. We do not think tbe admission of tbe evidence excepted to was reversible error.

Tbe fifth and sixth exceptions are taken to bis Honor’s ruling, permitting tbe plaintiff to testify that be told bis wife and one T. E. James, at the time of tbe loan, the rate of interest tbe defendant was charging him, and to tbe testimony of James, that tbe plaintiff told him, as testified to by him. This was admitted as corroboratory of plaintiff and was restricted by bis Honor to this purpose, and so explained to tbe jury. Tbe evidence was objected to by defendant, for tbe reason that tbe credibility or character of tbe witness bad not been attacked, but there was evidence contradicting him, to wit, tbe testimony of tbe defendant. Both plaintiff and defendant offered, without objection, evidence of their good character.

Tbe defendant’s argument proceeds upon tbe theory that contradiction was not an attack upon tbe credibility of the witness —was not an attempt to impeach him. Tbe precise question was presented in Bullinger v. Marshall, 70 N. C., 520, in which case Pearson, G. J., said: “First, tbe plaintiff was introduced as a witness in bis own behalf, and swore that, a,t tbe time of tbe sale, tbe defendant said: ‘The mule was sound, as far as be knew, but did not tell him tbe mule bad bad tbe sweeny.’ Here was a direct contradiction. Tbe plaintiff, by way of corroborating bis testimony, was allowed to prove that soon after tbe sale and after tbe unsoundness of tbe mule bad become apparent, tbe plaintiff, in a conversation with tbe witness, .in detail*338ing* the circumstances of the trade, told him that the defendant had not disclosed the fact ‘that the mule had had the sweeny.’ We concur with his Honor in the opinion that this testimony was admissible.”

In Roberts v. Roberts, 82 N. C., 29, Chief Justice Smith. speaking to this question, said: “The admissibility of similar and concurring statements previously made by a witness to sustain his assailed testimony and strengthen confidence in the 'accuracy of his memory and the truthfulness of his evidence, has been so often declared in numerous cases before the Court, from Johnson v. Patterson, 9 N. C., 183 (decided in 1822), down to the recent case of Jones v. Jones, 80 N. C., 246, and the rule so thoroughly settled and so often recognized and acted on, as to make a citation of authorities entirely needless. We do not propose now to review them, because in England and in. New York, and perhaps other States, this species of evidence is received under restrictions and modifications not recognized in this State. We will only say that in Bullinger v. Marshall, 70 N. C., 520, as in our case, the testimony of the respective parties was in direct conflict, and to corroborate that of plaintiff, he was allowed to show correspondent representations made shortly after the facts occurred.” March v. Harrell, 46 N. C., 329; Burnett v. R. R., 120 N. C., 517. In this last case the cases decided by this Court upon this question are collected by Ciarle, J. In section 1127, 2 Wigmore on Ev., and in the note under this section, the eminent author recognizes the lack of unanimity' in the decisions of the courts on this question, and cites many cases in accord with the uniform holding of this Court. The case of S. v. Parrish, 79 N. C., 610, is urged upon our attention as laying down a different rule. In the case of the witness in that case, who sought to be corroborated by previous statements, the Court says: “He was not cross-examined, not contradicted, his character not assailed, nor was he in any way impeached, but stood before the court as any other witness, upon his merits.” It was held there that the evidence was not admissible. In the present case, the witness was cross-examined; he was contradicted; and he was permitted, without objection, to prove that his character was good. Under the cases cited, we do not think his Honor erred in admitting the evidence.

The other assigned errors are to his Honor’s charge. We have read it carefully, and we do not think the defendant has any just ground of complaint. It seems the defendant requested no special instructions to be given upon any particular phase of the law applicable to the evidence, and we see no error in *339tbe charge given. The record stated that his Honor carefully stated the contentions of the parties. The questions involved were almost entirely matters of fact to be ascertained by the jury. These facts have been found against the defendant, and we discover no error in the trial. The judgment is affirmed.

No error.