As we make out the case in this record, it was an action of assumpsit, brought by the appellee against the appellant, to recover the proceeds of a certain note for seven hundred and nine dollars, on one Ottowa, left with him by the appellee, out of which the appellant was to reimburse himself about five hundred dollars, which appellee owed him.
On this trial, the defendant objected to reading the note in evidence, without alleging any reason for the objection. As the note was not the gravamen of the action, but in amount only, it could be read under either of the counts in the declaration, and so the court decided, and this is the first ground of error assigned.
The second is, that the court denied him the privilege of addressing the jury. The record shows, on being asked by the court if he wished to address the jury, he replied, that he wished only time to draw up one or two instructions. This the court granted, and when the instructions were presented to the court, they were refused, and the jury was directed to retire. Thereupon the defendant asked leave to address the jury, which the court refused. Matters of this sort, so much- discretionary with the court, under such circumstances as are here shown, cannot be assigned as error.
As to the refusal of the court to allow the defendant to introduce evidence competent to the issue, we cannot find it in the record. All that the defendant offered, which was the order on West in favor of the plaintiff, appears to have been read to the jury.
In regard to the instructions. The first instruction asked by the defendant, assumes that he had the authority, by an agreement with the plaintiff, .whilst he was the defendant’s debtor, to borrow such amount of money as he pleased on the Ottowa note, at such rate of interest as he might agree to give, and charge it to the plaintiff. The facts show that the defendant at several times borrowed money of West, Dearborn, Moore & Co., at twenty-five per cent, interest, giving his own notes, and leaving with them, this note on Ottowa, as collateral security. He had borrowed, at different times, five hundred and fifty-six dollars of this banking house, the first amount of two hundred dollars, having been borrowed June 27, 1857; the second, July 21,1857, for fifty dollars; the third, August 3,1857, for one hundred and six dollars, and the fourth note, August 13, 1857, for two hundred dollars; making in all, five hundred and fifty-six dollars, on usual bank time, at the rate of twenty-five per cent, per annum, which wore the current rates as it appears at that time. Moore, one of the partners in the banking house, states, that the plaintiff and his wife, both told him that they owed the defendant five hundred dollars, and that they had let him have this Ottowa note to secure him, with the understanding that in case defendant wished to use money and had to borrow, they would allow him whatever interest he had to pay, and that after reimbursing himself the five hundred dollars and such interest as he should have to pay, the balance of the note was to be paid to plaintiff. He says he cast up the amount due the house on the defendant’s notes, and interest, and gave a writing stating the amount to the plaintiff, which he took, and went away—and returned the same day with an order from the defendant for this balance. This balance the bank offered to pay, but the plaintiff refused to accept it, and went away.
Now the defendant was, most clearly, entitled to the full benefit of this contract with the plaintiff, to charge the interest to him, on such money, as he had to borrow, and for which he had left that note, as collateral to his own, and the court should have given the first instruction to the jury. The order alluded to by this witness, is as follows:
W, B. West, Esq. :
I left with you, as collateral security, a note of seven hundred and nine dollars, against Horace Ottaway, date Sept. 29, 1855, payable to Thomas Pouley; said note was due Sept. 29, 1858; after deducting the full amount now due on said note, you will please pay the balance to Thomas Pouley, and this shall be your receipt for the same.
A. M. HERRINGTON.
Geneva, September 28, 1858.
The second instruction assumes that the balance ascertained by Mr. Moore’s computation, for which the above order was given, was all that was due the plaintiff—the words are, “ his due upon said note ”—whereas the balance might not have been properly calculated. The instruction should have read “ such balance as was due upon said note,” leaving it an open question how much was due. The evidence seems to show, that it was the understanding of these parties, that the defendant should charge against this note the interest he was required to pay for such money as he was obliged to borrow on his own paper.
This he does not appear to have had the benefit of, which doubtless, he would have obtained, had the court given the first instruction. By one calculation, if the interest at twenty-five per cent., which the defendant paid for the money he borrowed, had been allowed by the jury, the verdict against the defendant could not have exceeded one hundred and sixty dollars. The plaintiff said about two hundred dollars was due him. The case ought to go before another jury, and for that purpose, and for the refusal to give the first instruction, the judgment is reversed, and the cause remanded.
Judgment reversed.