(dissenting in part):
I agree with Mr. Justice Patterson that there was no evidence to sustain a finding that these notes were given in pursuance of a usurious agreement. The notes, upon their face, called for the payment upon demand of the principal, with interest; and that, it must be assumed, was the promise made by the maker of the notes, and from that promise there followed the legal obligation to pay to the payee, the plaintiff in this action, the amount specified, with interest at the rate of six per cent per annum. There was indorsed upon the note the receipt of interest for each six months, the amount of interest, however, not being stated. Upon tbis it must be assumed that the legal interest was paid. There was evidence that at the end of each six months there was sent by the makers of the note to the payee a sum of money which would be equal to interest at the rate of ten and one-half per cent per annum; but there is no evidence that this was in pursuance of any agreement or understanding with the plaintiff that she understood that she was receiving that amount as interest upon her notes, or that there were any conditions attached to the payments. There is evidence of declarations of the. defend*191ant’s testator, the surviving partner of the maker of the note, to his employee, 'which would indicate that these payments were voluntary payments of interest at the rate of ten and one-half per cent, four and one-half per cent in excess of that required by the note. .But in the absence of any understanding or agreement with the plain tiff under which these payments were made, it seems to me that upon the receipt of each sum the plaintiff was required to deduct the amount due for interest and apply the balance to the payment of the principal of the note. The notes were due on demand. The plaintiff was entitled to demand the payment of the amount due at any time, and the defendant was entitled to pay off the note at any time. When, on the 18th of November, 1892, the plaintiff received a check for the amount of interest at six per cent, to which she was then entitled, and also for a further sum in excess of the interest, and collected the money, it was a payment of an amount in excess of interest due which was applicable to reduce the amount of principal ; and while agreeing with the learned trial court that there was no evidence to justify a finding of usury, I think the judgment to which the plaintiff was entitled was for the amount of the principal, less the payments made in excess of .interest at six per cent. Upon this appeal, therefore, the judgment should be modified by reducing it to the amount due after such application as a payment on account of the principal. It would follow, as the defendant has succeeded in obtaining a substantial reduction of. the claim as presented, that costs should not have been awarded against him.
The judgment should be modified accordingly, and as modified affirmed, without costs of this appeal.
Judgment modified as directed in opinion, and as modified affirmed, without costs. Appeal from order dismissed.