Alston v. Orr
| Citation | 105 S.W. 234 |
| Parties | ALSTON et al. v. ORR. |
| Decision Date | 06 November 1907 |
| Court | Court of Appeals of Texas |
Chas. M. Meng and Harry P. Lawther, for plaintiffs in error.
Plaintiffs in error, M. K. Alston, J. Wilcox Alston, S. M. and T. F. Alston, brought this suit to recover the sum of $232.60, being double the amount of alleged usurious interest paid by them to defendant in error. Plaintiffs in error M. K., J. Wilcox, and S. M. Alston, desiring to borrow $150, applied to defendant in error for the loan of same, which he agreed to lend, provided they would pay $15 per month interest, and get their father, T. F. Alston, to sign the note with them, which they agreed to do, and, in pursuance of said agreement, on September 7, 1903, all of said appellees executed the following note: —which note was signed by appellants. Upon the execution and delivery of the note appellee paid the $150 to appellants. One hundred and fifty dollars was the amount actually loaned by appellee and received by appellants, but the note was drawn for $165; the $15 additional being the interest agreed upon by the parties for the time the note was drawn, to wit, 30 days; it being further agreed that appellants, upon the payment of 10 per cent. interest per month thereon, should have an indefinite time within which to pay off said note. Thereafter, at monthly intervals for nine months, the Alstons paid over to Orr various sums of money as interest on said $150, amounting in the aggregate to $116.30, and on April 4, 1905, they brought this action against him for double that amount, to wit, $232.60, under the usury statute, setting up the facts in their petition. Orr answered by general and special demurrers, general denial, and by special answer, alleging that at the time of the execution of the note it was agreed that the $150 obtained on the note was to be equally divided between S. M., J. Wilcox, and M. K. Alston, and that they were to be each liable for one-third of said debt, alleging that their liability was not joint, but several, and that all sums paid by them to Orr as interest were, in fact, paid by them separately, and consequently their cause of action against him for the statutory penalty was separate and not joint, and therefore the court had no jurisdiction, because the several amounts for which each could sue was less than enough to invoke the jurisdiction of the court, and prayed that the suit be dismissed for the want of jurisdiction. This defense was set up, both by pleas to the jurisdiction and by special plea in bar. On trial the plea to the jurisdiction was heard first by the court, jury being waived as to this plea, which, upon being considered, was overruled by the court. The case then went to trial before a jury on its merits. On the trial T. F. Alston, the father of the other three appellants, testified that he received none of the money for himself, but signed the note as surety and paid no part of the interest on the note; that M. K. Alston, J. Wilcox Alston, and S. M. Alston, his sons, had agreed among themselves that they were to divide the $150 received from Orr, and that each was to take $50 of the money loaned and be responsible for that amount to Orr and that they were each to pay one-third of the monthly interest charged by Orr on said $150, but that Orr was not a party to this agreement; that they divided it among themselves, each taking $50, and that thereafter J. Wilcox Alston had paid Orr as interest $5 per month for nine months, aggregating $45; S. M. Alston $5 per month for nine months, aggregating $45, and M. K. Alston $26.30 in monthly installments, Orr having agreed with them to extend the payment of the note for an indefinite time upon payment of 10 per cent. interest per month thereon. This evidence was supplemented by that of each of the sons to the same effect. It was shown that these payments upon interest were made by the respective parties at different times and in different amounts. Upon conclusion of the testimony, the court held that the evidence disclosed a variance between the allegata and the probata, in...
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Knott v. Jackson
...most nearly in point, relied upon by appellees and conceded by appellant to be contrary to his contention, is that of Alston et al. v. Orr, Tex.Civ.App., 105 S.W. 234, 236. In that case, three brothers applied for a loan which defendant agreed to make, provided their father would sign the n......
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Sud v. Morris
...who were parties to the letter agreement, heretofore mentioned, were necessary parties. The leading authority relied upon is Alston v. Orr, 105 S.W. 234 (Tex.Civ.App., 1907, no writ), followed by First Nat. Bank v. Herrell, 190 S.W. 797 (Tex.Civ.App., Dallas, 1916, no writ). Each of the cas......
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First Nat. Bank v. Herrell
...suit to be usurious, and prayed that each of them be made parties thereto. The law upon this subject seems to be well settled. Alston v. Orr, 105 S. W. 234, decided by the Court of Civil Appeals for the Third District of this state, was an action for the recovery of the penalty given by our......
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Merchants' & Planters' Nat. Bank of Mill Creek v. Horton
...unite in one action to recover the penalty. In that case payments were made out of the individual funds of the parties. In Alston et al. v. Orr, 105 S.W. 234, it was held under a statute of Texas, very similar to the Federal Statute, that all the makers of a joint and several note are neces......