The claim of plaintiff being for money had and received by defendant for plaintiff’s use, the declaration containing the common counts was sufficient to authorize the admission of the evidence offered for plaintiff. There was no error in overruling the motion to exclude plaintiff’s evidence. The evidence of the rate of interest at which money was loaned in large sums in St. Clair county about the time of the transaction between the parties was admissible.
The question of fact was as to whether plaintiff promised to pay eight per cent interest or whether nothing was said as to the rate of interest. If nothing was said as to the rate of interest the rate would be six per cent, and the presumption must be indulged that the defendant knew that to be the lawful rate of interest. Under all the facts proven in this case, if money at that time was loaned at six per cent interest where this transaction took place, it was proper to show that fact as a circumstance corroborative of plaintiff’s testimony that nothing was said about interest, and that he was to allow six per cent as fixed by law. The evidence sought to be introduced by appellant as to what his counsel had said to him and to the witness, Adolph Knobloch, at the time the memoranda and statement were made up, were not admissible; a conversation between counsel and client in the absence of the other party was not proper evidence, and the exclusion was as to what counsel said to client. The witnesses were permitted to state why they put u profit on sale 82,000” in the statement. The instruction asked by appellant and refused, entirely omitted the theory on which plaintiff claimed a recovery, that he induced the defendant to take the conveyance from Boul with the agreement to give him all over 89,000 for which it might be sold. It was not error to refuse to give that instruction.
The instruction for plaintiff, the giving of which is assigned as error, is substantially, “ If all the material allegations in plaintiff’s declaration are proven, and the jury believe from the evidence there was no express contract between the parties in regard to the rate of interest, then the jury are instructed to allow six per cent interest.” We do not see that the instruction was misleading in the form in which it was given; it correctly stated the law applicable to the facts proven, and, while its phraseology might have been better stated, we can not hold it was error to give it under the facts in evidence. The evidence in this record is not very satisfactory. The conveyance by Boul to Knobloch on the 10th of September, 1879, is admitted. The date of the conveyance of this real estate to Adolph by Thomas is shown, but the date of the conveyance by Adolph to Bischoff is not shown. The date of the conveyance from Thomas to Adolph in consideration of the surrender of the notes, is not proven. The manner of payment by Adolph for this land, if ever a consideration was paid, is not shown, nor the value of the land conveyed in consideration of the surrender of the notes. Under all the facts proven, we are not prepared to say we would not, on the evidence, have found as the jury did in the trial court.
The memoranda prepared in the form of a statement, was by the defendant declared to be correct, that statement being in evidence, and the answers of Thomas and Adolph as to why they put in the statement, “Profit on sale, §2,000,” were before the jury. The facts surrounding the case, with no evidence as to payment or manner of payment by Adolph to Thomas in consideration of this conveyance, the fact of both being present at the time of the sale to Bischoff, with Bischoff making the greater part of the payment by turning over to Adolph the notes of Thomas, which notes were afterward surrendered to Thomas for the conveyance of real estate, the value of which not being in any manner alluded to, were all circumstances to be considered by the jury, and may have been considered by the jury as satisfactorily showing that the real transaction was between Bischoff and the defendant in the sale and purchase of the real estate, and the sale to Adolph fraudulent. If so, the profit was §2,000. If the profit was §2,000 and the jury found the rate of interest was not agreed on, then the rate of six per cent instead of eight per cent would be the rate fixed by law, and the difference in the rate of interest with the amount the rents exceeded taxes and repairs woffid have shown in the defendant’s hands a sum that would have authorized a larger verdict. From the evidence in this record we can not say the jui'y was not warranted in finding as they did.
We must affirm the judgment. The judgment is affirmed.
Judgment affirmed.