Forty-nine assignments of error are made in this case, but only those urged in the brief of plaintiffs in error, *464who were defendants below, and will be hereafter referred to as defendants, need be considered. Those are, first, that they were improperly denied the right to open and close at the trial; second, the admission in evidence of certain acts of Oklahoma relating to the rate of interest established by law in that territory; third, the permitting of certain questions on cross-examination as to the consideration of the note sued on; fourth, that the verdict is not supported by sufficient evidence,— (a) that there was no competent evidence that the Oklahoma' statute allows twelve per cent, interest, (b) that the evidence showed that defendants were entitled to a credit of $110.67 and it was not allowed them; fifil, that the evidence did not warrant an instruction that the Oklahoma rate of interest is, or may be by special contract, twelve per cent, per annum ; sixth, that it was error to instruct the jury that to entitle the defendants to a credit for the $110.67 claimed, it must have been unconditionally deposited with the plaintiff bank; seventh, that the tidal court erred in refusing to instruct that Oklahoma law's as to interest were to be presumed to be the same as Nebraska’s in the absence of proof; eighil, that the trial court erred in refusing an instruction that the contract should be governed by the laws of the place from which the acceptance of it. was dispatched; and ninth, that the trial court erred in refusing an instruction that the statute pleaded in the reply had no application to this note.
Plaintiff’s petition was upon a promissory note for $300, dated at Guthrie, Oklahoma, June 15, 1895, payable August 23, 1895, on which interest had been indorsed as paid up to February 9,1898. The rate of interest provided on the face of the note was twelve peer cent, per annum, and a copy of the note was in the petition. Following this was the following paragraph:
"That said note was executed and delivered at Guthrie, Oklahoma Territory, in accordance with and under and by virtue of the territorial laws of Oklahoma,; that said money was contracted for and had and received and paid over to *465the defendants by the plaintiff in accordance with the statutes of the said territory, made and provided for'in such cases, and that said law provides that under and by virtue of special contract that the rate of interest mentioned and described in said note was the legal rate of interest in said territory at the date of said contract.”
The answer admitted plaintiff’s incorporation, the making and delivery of the note and the payment of $3 on its principal, denied paragraph three above, alleged usurious agreement for twelve per cent, per annum interest, the payment of $88.50 as interest and $110.67 on the note March 10, 1898.
The first error, in refusing to defendants the opening and closing, is claimed because, as defendants assert, paragraph three above pleads no fact but only legal conclusions. This seems to be a mistake. The note is set out and showS on its face a rate of tAvelve per cent, per annum interest. Paragraph three alleges that the note was an Oklahoma contract and that the laws of that territory at that date made it a legal rate by special contract. Possibly defendants might have been entitled to a direct statement of what the Iuav in terms provided rather than this indirect statement through a reference to the note that the law proAlded for tAvelve per cent, per annum by special contract. No motion for a more specific statement, however, was made. A general denial was fthed, and after judgment this form of statement will be sufficient.- As the petition showed a note bearing twelve per cent interest on its face and payments of more than $90, there could .be no recovery for so much of the principal, nor for any interest nor costs, if no proof was adduced. The denial of this paragraph therefore rendered proof necessary to -establish plaintiff’s cause of action on this note. Without this there could be a recovery only on another ground, the loan admitted in the ansAver. The action of the trial court, therefore, in refusing to defendant the opening and closing seems not to have been erroneous.
The second error seems to be disposed of substantially *466in the first. The allegations of paragraph three of the petition, challenged only by a general denial, were sufficient to warrant the introduction of evidence as to the interest laws of Oklahoma. The complaint that it does not appear that the copy of the laws of Oklahoma, which was introduced, purported to be published by the authority of the territory, is not well founded. The offer recites that it purported to be so published and the objection is not on that ground. It is on the ground that the authentication was insufficient and that the petition was an insufficient pleading of such facts. There was no question raised that the book did not purport to be published by authority and the objection was rightly overruled.
The third complaint, that cross-examination as to the consideration of the note was permitted and was wholly irrelevant, as not being ip dispute, does not seem to be any better taken. It is hard to see how this was prejudicial or could have been. In any event the court could not tell beforehand how important the answers might be to a correct conclusion as to whether or not this was an Oklahoma contract rather than a Nebraska one. No motion to strike out the testimony as to the consideration was .made and the fact that the note, though given after defendant’s removal to Nebraska, was to get money to take up an indebtedness existing in Oklahoma, does not seem entirely irrelevant to the question as to the location of the contract.
The objection that the verdict is contrary to the evidence as to usury does not seem weJl taken. U. 0. Guss, plaintiff’s president, testified that the permitted rate of interest in Oklahoma territory was at that time twelve per cent, per annum. The statute introduced and appearing on page 76 of the bill of exceptions provides that when a rate of interest is specified in a contract it shall continue until payment but shall in no case exceed twelve per cent, per annum. It is true that this statute is headed “Interest on Judgments,” but the effect of the whole is certainly to show a different law from that of Nebraska. The same *467act seems to repeal the general interest law of the territory. If defendants wanted protection from an Oklahoma usury law as against this note they should have produced the law after this showing by plainti ff.
The complaint as- tO' the non-allowance in the verdict of the alleged payment of $110.67 seems, at most, only a case of an adverse finding on conflicting evidence. Plaintiff’s president says that this $110.67 was deposited in the hank by F. W. Hewit as a final payment on some partnership transactions with defendant, W. E. Hevdt, and was to be held until a receipt in full should be received from W. E. Hevdt to F. W. Hevdt on account of the transactions; that subsequently F. E. Hevdt demanded the money and as the receipt had not been received from defendant it was turned back. After this and after W. E. Hevdt had been notified of it, he says the latter sent the receipt, but it was then too late to hold the money. W. E. Hewit disputes one of these statements, but the jury were warranted in finding them substantially true and that there was no obligation to hold this money or right of the bank to apply it on defendant’s note.
The fifil claim that the evidence did not warrant the court’s instruction that the laws of Oklahoma allowed twelve per cent per annum and that no usury was to be found in this note if they found it was an Oklahoma contract, need not be further discussed. The evidence of plaintiff on this point has been considered competent and sufficient and none was tendered by defendants.
The sixth complaint that the trial court erred in telling the jury, as in substance was done in the 9th instruction, that the defendants must, to entitle them to the $110.67 credit, show an unconditional deposit of the money by F. W. Hewit for that purpose, is not well founded. Defendants might claim that the president’s letter of February 25, 1898, was proof of an unconditional deposit. They could not claim that the evidence tended to prove any compliance with the alleged conditions before the money was withdrawn. It was therefore no error to give an instruc*468tion withdrawing from the jury this question as to compliance with, the conditions. The receipt urns not sent until October, 1898, and the money had then long been withdrawn. There is no contradiction of the testimony that it was procured back within sixty days on defendants refusing to accept conditions.
The seventh complaint has been disposed of in considering the fifil one.
The eighth complaint, as to a refusal to instruct that if the note was sent from Nebraska the laws of Nebraska would govern seems to call for no discussion. The trial court’s instruction that the law which was contemplated by the parties at the time as governing the contract was to control, was at least as favorable as defendants were entitled to. Teal v. Walker, 111 U. S., 242; Cromwell v. Sac County, 96 U. S., 51.
The objection that the court refused an instruction that the statute pleaded in the reply, which has been heretofore discussed, had no application to this note, and that the jury should find the rate of twelve per cent, per annum usurious, needs no further consideration.
The questions really raised in this case are as to the competency of the pleading and proofs of the Oklahoma statute, as to what law governs this contract and as to the fact of payment of the $110.67. The first seems to have been correctly determined by the court and the two latter by the jury.
It is recommended that the judgment be affirmed.
Day and Kirkpatrick, CO., concur.By the Court: For the reasons stated above, the judgment of the district court is
Affirmed.