delivered the opinion of the Court:
This was an action of assumpsit, to recover the amount of a promissory note executed by the defendant and Davis Patton, on the 4th day of June, 1877, for $7054.56, payable to Joseph Leonard, six months after date. The defendant pleaded the general issue, usury, and tender, upon which issue was taken. A trial of the issues before a jury resulted in a verdict and judgment for the defendant. The plaintiff appéaled to the Appellate Court, w'here the judgment was affirmed, and to reverse that judgment he has brought this appeal.
Whether the transaction was usurious was a question of fact, upon which evidence was introduced before the jury by both parties; and while the evidence to sustain the plea of usury is not as convincing in its character as we might require if that was a question properly before us, yet the judgment of the Appellate Court affirming the judgment of the circuit court, under the statute is conclusive upon all questions of controverted fact which were before the jury, and such questions can not be considered .here.
On the trial the defendant asked and obtained leave to withdraw the plea of the general issue, and this is assigned for error. The practice is well settled, in this State at least, that a defendant may, in the discretion of the court, abandon any part of his defence during the trial. (New England Fire and Marine Ins. Co. v. Wetmore, 32 Ill. 221.) The court, therefore, did not err in allowing the plea to he withdrawn.
It is next claimed that the decision of the court in refusing plaintiff’s instruction No. 10 was erroneous. The instruction in substance declares: to constitute usury by taking interest upon interest, it must appear that there was an agreement made in advance for the payment of such interest. The substance of this instruction was given to the jury in instructions Nos. 1 and 2, and the court was not required to repeat the same thing in a different form. But if we are not correct in this, the instruction was in conflict with the law as declared in Peddicord v. Connard, 85 Ill. 102, where it is said: “If an usurious contract is made, whether express or implied, at the time of or subsequent to the entering into the agreement, to take or reserve more than lawful interest, it is such an agreement as is within the purview of our statute. ”
The next error assigned is, that the court erred in giving instructions Nos. 7, 8, 9, 10, 11 and 12. These were the only instructions given on behalf of the defendant,—the others, from 1 to 6, inclusive, having been refused. No. 7 merely informs the jury that if plaintiff relies upon an agreement to pay compound interest, he must prove such agreement by a preponderance of the, evidence,—and, so far as we can see, it is unobjectionable. "No. 8 directs the jury that if they find, from the evidence, that there was usury in the note, plaintiff was only entitled to recover the amount due when the contract for usury was made,—and in this it conforms to our statute. No. 9 directs the jury that if they should find, from the evidence, that defendant promised to pay the note in full, yet if they find that there is usury in the note, then such promise is not binding. After a contract to pay more than the legal rate of interest has been made, we do not understand that a subsequent promise to pay will relieve the contract of the taint of usury. If it did, the statute could easily be evaded. No. 10 was given to guide the jury on the question of tender, and merely announces the familiar rule on the subject that if the amount due was tendered to plaintiff before the commencement of the suit, and the tender was kept good by depositing the amount in court, then they will find the issues for defendant. No. 11 is in substance like-No. 9. No. 12 in substance directed the jury, if they find, from the evidence, that the note in suit was given for $150 more than was' due from defendant to plaintiff, and in consideration of the excess in the note time of payment was extended six months, then the transaction is usurious. We perceive no substantial objection to this instruction. An agreement to pay a given sum in excess of the legal rate of interest in consideration of an extension of the time of payment, is as clearly in violation of the statute as if the agreement was to pay fifteen or twenty per cent interest'. The statute can not be avoided by any shift or device which may be resorted to by the parties. The form of the transaction is not material, but whenever it clearly ' appears that more than the legal rate of interest has been exacted, the contract will be held to be usurious. Doubtless a party may lawfully contract to pay interest on interest past due, as announced in the instruction; but a contract to take a gross sum in excess of the legal rate of interest, or in excess of interest on interest past due, can not be sustained.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.