On Petition for Rehearing.
Per Curiam.Plaintiffs have petitioned for a rebearing. It is contended that tbe record “shows tbe payment of interest, and tbe exact amount paid upon interest.” This contention is based upon certain statements in defendant’s answer and certain answers given by bim during bis cross-examination. Tbe point was not raised by appellant on tbe presentation of tbe case, but at tbat.it was not overlooked by tbis court. On tbe contrary tbe question was called to tbe attention of tbe members of tbe' court in a memorandum circulated with the former opinion, and was fully considered by them.
It is true there are certain statements in tbe answer of tbe defendant which are really admissions that some of tbe payments received by tbe defendant bad been applied by bim upon interest. But plaintiffs certainly did not rely upon these as judicial admissions. Defendant’s testimony, and certain statements prepared by him as to tbe application of tbe payments received, are in effect directly contrary to such alleged admissions in tbe answer. In fact such testimony and such statements are to tbe effect that tbe money received by defendant was not applied upon interest at all, but was applied in payment of tbe subsequent advances made by tbe defendant, — and tbe answer also alleges, among other things, that tbe moneys were applied in payment of such advances. And as stated in tbe former opinion no portion of tbe payments received by tbe defendant were indorsed upon any of tbe notes as and for interest payments, or at all. It will also be noted that defendant’s motion for a directed verdict (set out in tbe former opinion) was based upon tbe theory that tbe moneys received by defendant bad not been applied upon interest. And during tbe course of the argument of plaintiffs’ counsel to tbe jury, an incident occurred which is quite illuminating.
*596We quote from tbe record:
Defendant’s counsel: We take exception to tbe remarks of counsel, there being no testimony in tbe record showing tbe payment of any interest at any time; tbe testimony showing that statements were drawn up, which were tabulated and for which general credits were given for the crops, the place as to where the same were applied not being stated, hut it was simply a matter of figuring up the interest, and the statements balanced, and new notes being taken for the balance, there being no evidence of any interest being taken at any time; there being no testimony either of any interest being taken at any time.
The Court: Sustain the objection.
Plaintiffs’ counsel: Now, am I permitted to argue on that, your Honor ?
The Court: Not after the ruling, no.
Plaintiffs’ counsel: The ruling comes before that. I just wanted the record to show, that is all.
It will be noted that plaintiffs’ counsel in no manner intimated that there were any judicial admissions in support of the proposition Jhe had been arguing.
In a brief presented by the defendant in this case, it was said:
“Before the plaintiffs could possibly recover in such an action as this, it must be shown that the interest has been paid by them. No proceeding has been taken by the defendant to enforce his claim against the plaintiffs. If they are entitled to this penalty, they must show the payment of the interest before they can recover it. They cannot-recover the interest here for the purpose of offsetting it against a. demand in a proceeding to foreclose the defendant’s mortgages. There are two memorandum statements which are among the exhibits in this case, and they are marked with blue pencil X and XX. On the statement marked X is a memorandum taken from the evidence and the exhibits showing the total amount of moneys advanced for and loaned to the plaintiffs.
“Before the taking of the new note and mortgage for $9,000, the $9,000 note being exhibit 29, the amount of those advances and loans aggregated $7,987.80. After the settlement and the making of the new $9,000 note and the mortgage securing the same, and up to the *59725 th of January, 1915, tbe defendant paid out in discharge of encumbrances and other obligations of the plaintiffs the sum of $1,230.90; such payments being made with the consent and the approval of the plaintiffs and in order that the mortgage which the defendant took should be a first mortgage on the real property described in it. That made a total of loans and advances of $9,218.70.
“Referring now to the memorandum marked XX we find that the total amount of moneys paid by the plaintiffs since the beginning of this contract is $5,424.33. Now, the original loan was considered $4,150, the particular notes being referred to on the said memorandum: XX, so that aside from the principal loan there was money actually advanced and paid out for liens, taxes, and other mortgages, and for horses, for the burial of his father, and sundry items of machinery, and seed grain, making the total above referred to of $9,218.70. If we deduct from that total sum the amount of the original five notes of $4,150, we will show that there were subsequent advances of sums from $3 up to $2,000, aggregating $5,068.70.
“Now, the record shows that there were payments made on four particular dates between January, 1910, and January, 1915; that the total of those payments was $5,424.33 or $355.63 over and above the amount of moneys actually advanced after the original loan of $4,150. That these payments of money, as indicated on the statement XX, were applied to the discharge of the subsequent advances, is unquestionable, and it was the right of the defendant to so apply them, in the absence of proof that some other application was demanded. If the total payments to the defendant by the plaintiffs were properly applied to the extinguishment of the subsequent advances listed on memorandum X, then there could have been payment of no interest on any of them in excess of the sum of $355.63. It will be observed that the figures . given in the memoranda marked X and XX include no interest, and it was perfectly fair to assume, as the jury must have done, that the éntire $5,424.33 was absorbed in the discharge only of the subsequent advances made by the defendant after the original loan was made. If that be so, how can the plaintiffs claim that they have paid the interest, or any interest contracted for in this case, or exacted from them by the defendant ? It is incumbent upon them to prove in such manner as would satisfy the jury that they have paid interest upon the entire debt, *598or that at least so much thereof as would entitle them to the amount which they claim. It is perfectly apparent that the plaintiffs have taken the position that all of the payments they made must have been applied on interest. That does not follow. The defendant was making them loans from $10 to $250 and $2,000 at frequent intervals during the whole term of eight or nine years, and it is not to be supposed that he was applying the moneys received from the plaintiffs to the payment of interest only, but rather that he was applying it to the payment of the later advances, leaving the original loans secured by the mortgages which were originally given for that purpose.”
. The answers of the defendant to which reference is made wei’e elicited during cross-examination. He stated that he could not answer, and did not know how much money had been applied on interest, but that he thought his attorney could tell. When asked in regard to the statements in the answer already referred to, he stated that he thought the answer to be as near correct as he could get it, or remember it. But these isolated statements are not defendant’s testimony. His testimony should be considered as a whole, — which was doubtless the way the jury, considered it. Defendant’s testimony so construed showed no application of any part of the moneys paid to interest.
As already stated in the former opinion, defendant was not a man used to carry on business transactions of the kind involved herein. He couldn’t even compute interest, or prepare a promissory note for signature. He relied upon others to do these things for him. He turned his papers over to his attorney, and his attorney prepared the answer.. While the admissions in the answer would have been binding if invoked, the parties had a right to place their own construction upon the pleading and the issues framed. Under the facts in this case it seems clear to us that plaintiffs placed no reliance upon the so-called admissions in the answer. Plaintiffs’ theory, both in the court below and in this court, was and is that all payments received by the defendant must ipso facto be deemed applied upon interest. In fact this theory is still adhered to in the petition for rehearing. Referring to the statement showing the amount of moneys advanced by the defendant, and the sums paid by the plaintiffs, it is said that such statement shows “the total amount paid as $5,424.33.” And the contention is advanced that “this shows over $5,000 paid in interest.” This theory, as we *599held in onr former opinion and still hold, is unsound. It is contrary to the overwhelming weight of authority (39 Oye. 1026), and would largely defeat the purpose of the usury statute.
The rule is elementary that where the parties act upon a particular theory in the trial court, they will not be permitted to depart therefrom when the ease is brought up for appellate review. This is true of the construction placed upon pleadings. 3 C. J. p. 725. It is true as to the relief sought and the grounds therefor. 3 C. J. p. 730. It is true generally as to the theories acted upon by the parties in the court below. See 3 O. J. pp. 718 et seep A party cannot proceed with a tidal upon one theory, and advance another and inconsistent theory on appeal. A party cannot be heard to say for the first time on appeal that a certain issue does not in fact exist because of certain admissions in the pleadings. ;We adhere to the former opinion. A rehearing is denied.
GRACE, J. I concur in the result.