[7] Appellants contend that we erred in sustaining the action of the trial court in refusing to strike the testimony of H.J. Hammond and Charles C. Hammond as to the amounts due on the notes. They urge that we misapplied the general rule; overlooking the exception that, if the question, when propounded, appears unobjectionable, the answer is to be subsequently stricken when shown to be incompetent.
It seems to us that appellants misapply the exception. The ultimate question in the case was the amount due. It depended upon numerous primary facts. The questions called for conclusions by the witnesses and were objectionable on that ground at least. The objections made after cross-examination were that the answers were hearsay, *Page 182 and were not the best evidence. It cannot be said, of course, that it certainly appeared, when the questions were asked, that the answers would be hearsay. Yet, in all probability, having in view banking practices and the long course and the involved nature of the transaction as set out by appellants themselves in their answer, the testimony sought to be introduced could not be based upon personal knowledge and recollection. The objection that the answers were not the best evidence seems to contribute nothing to the strength of appellants' position. It is not a case of parol evidence varying a written contract. The fact that there were records of the transactions would not exclude parol evidence of them if within the knowledge and recollection of the witnesses. So that the claim that the answers were not the best evidence could only have meant that they were conclusions.
The matter stands thus: The questions, when asked, called for incompetent testimony; clearly for conclusions of the witnesses, probably for hearsay. Yet the answers were allowed to be given without objection. Under such circumstances we think a trial judge should have a wide discretion in ruling on a motion to strike the evidence made at a later stage. Orderly and expeditious procedure demands it. Appellants failing to object, the court had the right to assume that they were willing to shorten the proceedings by admitting the answer; that they were waiving what, in the particular case, was a comparatively unimportant right. The answers, of course, would not be conclusive, and would not preclude further inquiry from the records of the bank, or from other sources, as to what amounts were actually due. We consider that in such a case as this it would be an abuse to reverse the judgment upon the ground now urged, and that a correct application of the pertinent rules of evidence does not require it.
[8] One of appellants' claims of usury was in connection with one of their notes given to the Union Trust Savings Bank, and rediscounted with the New Mexico branch or subsidiary of the War Finance Corporation. The interest exacted by that corporation was 5 1/2 per cent. *Page 183 The federal statute (Act of August 24, 1921, § 3, amending Act of April 5, 1918, § 28 [15 USCA § 352]) made it unlawful for the bank to receive from the borrower more than 2 per cent. additional to the rate charged by the War Finance Corporation. In fact, it is claimed, a full 10 per cent. was charged and paid.
Upon this contention the trial court found:
"IX. That the defendants were at no time charged by the Union Trust Savings Bank with any excessive, illegal, or unlawful rate of interest in connection with any loan, note, or mortgage of the defendants and negotiated with the Union Trust Savings Bank, with the agricultural loan agency of the War Finance Corporation."
The present contention is, in effect, that this finding is not based upon the conflicting evidence, but upon an erroneous view of the law of usury. Mr. Law, one of the appellants, under direct examination, was giving evidence of facts bearing upon this contention. Counsel for appellee challenged the materiality of it, contending that the exaction of 10 per cent., if true, would not constitute usury under the laws of New Mexico. The court expressed agreement with this view. It is claimed that this was an admission, both by counsel and by court, not only of an usurious charge, but of an usurious intent. We cannot sustain the contention. Notwithstanding the court's expressed view, counsel for appellants was permitted to proceed with the evidence. Counsel for appellee cross-examined on it and offered rebuttal. It can hardly be said to have been a ruling. Nor can it be said, with any degree of certainty, to have affected the result. Mr. Law's testimony as to the transaction in question is uncertain. We have not been able to determine just what he claims was done. It is plain that at the time of a subsequent renewal he admitted to the branch of the War Finance Corporation, in writing, that he had had a satisfactory adjustment with the bank on a 7 1/2 per cent. basis upon all loans of his which the bank had discounted with the War Finance Corporation.
It is possible to entertain a conjecture that the finding above quoted was based upon the view that, as matter of law, the facts claimed did not constitute usury. It is *Page 184 equally possible to take the other position; that it is a mere finding of fact upon conflicting evidence. The record being doubtful, and the presumption being in favor of the judgment, appellants have failed to sustain their contention. Sandoval v. Unknown Heirs of Vigil, 25 N.M. 536, 185 P. 282; Guaranty Banking Corporation v. Western Ice Bottling Co., 28 N.M. 19,205 P. 728.
The motion for rehearing must be overruled.
It is so ordered.
PARKER, C.J., and BICKLEY, J., concur.