Fred G. Clark Co. v. E. C. Warner Co. , 188 Minn. 277 ( 1933 )

I concur, but apropos some of the argument I desire to add the following. If in respect to the burden of proof of usury there is apparent conflict between Hawkins v. Kronick C. L. Co. 157 Minn. 33, 195 N.W. 766, and Palmer v. First M. T. Co.179 Minn. 381, 230 N.W. 257, 258, the fault is mine, for I happen to have written in both cases. There is no conflict in fact. In the Palmer case [179 Minn. 384] it was said that "the burden of proof is upon the party claiming usury to negative every reasonably supposable fact which if true would render the transaction lawful." That language, used in deciding a civil rather than a criminal case, did not mean that the negative referred to must be established beyond reasonable doubt. No cause of action can be established without proof of every essential element. In a usury case that means negation of all facts which would make the transaction lawful. In any civil case that may be done by a fair preponderance of the evidence, subject to strict scrutiny of the evidence of usury required by the severe penalty involved. Temple v. Davis, 115 Minn. 328,331, 132 N.W. 257.