It appearing from the evidence of the defendant that the promissory note and mortgage given by him to the plaintiff were infected with usury, in that the principal of the note was made up of two items aggregating $450, upon which sum $50 i nterest had been charged for a period of a little over nine months, the plaintiff saying he would exact 12 per cent, upon $350 of that amount and 8 per cent, upon the remaining $100; and the plaintiff testifying- that he was not, for want of recollection, in a position to swear positively that any other items of indebtedness were included in the principal of the note, and admitting that it was his intention to charge 80 cents on every $10 of the principal for the time the note was to run, a period considerably less than a year, a charge by the court based on the theory that the plaintiff made an honest mistake of fact in calculating interest on the principal at the rate of 8 per cent, per annum, and that he had no intention to exact any usury, was not warranted by the evidence, and the finding of the jury that he had no such intention should have been set aside.
Judgment reversed.
All the Justices concur, except Simmons, O. J., absent.