Associates Investment Co. v. Barker

• Decision Date: 04 May 1949
• Docket Number: No. 9755.,9755.
• Citation: 221 S.W.2d 363
• Parties: ASSOCIATES INVESTMENT CO. v. BAKER.
• Court: Texas Court of Appeals

221 S.W.2d 363

ASSOCIATES INVESTMENT CO. v. BAKER.

No. 9755.

Court of Civil Appeals of Texas. Austin.

May 4, 1949.

Rehearing Denied May 25, 1949.

Appeal from County Court at Law, Travis County; Mace B. Thurman, Jr., Judge.

Action by Charles O. Baker against Associates Investment Company to recover double the amount of usurious interest allegedly paid. Judgment for plaintiff and defendant appeals.

Judgment affirmed.

Smith & Pollard, of Austin, for appellant.

J. Travis Blakeslee, and Thomas D. Blackwell, both of Austin, for appellee.

RAYMOND GRAY, Justice.

This is an appeal from a judgment awarding appellee a recovery of double the amount of alleged usurious interest paid to appellant.

The only evidence heard by the trial court, upon a nonjury trial, was the testimony of appellee and certain exhibits introduced in evidence by the parties. This evidence shows that appellee purchased an automobile from Lucas and Mayfield, used car dealers, for a purchase price of $975. As a part of this purchase price, $475 was allowed appellee as the trade-in value of his automobile, which left a balance of $500 unpaid. For this unpaid balance appellee executed a conditional sales contract and his note for the principal sum of $683.25, payable to the order of Ted Lucas at the office of appellant, due in fifteen monthly installments of $45.55 each and bearing interest after maturity at the highest legal rate. The note and conditional sales contract were on the same sheet of paper and were indorsed by the payee, without recourse, to appellant to whom appellee paid the full amount of the fifteen installments, except a discount of $1.36 allowed him.

The indorsement of the note and conditional sales contract is not dated, but the evidence shows the purchase of the automobile was on Saturday, August 24, 1946, and the note and sales contract were indorsed to appellant on the following Monday, August 26.

The conditional sales contract recites: total cash price of automobile $975; total down payment $475; unpaid cash balance (deferred balance) $500; "total finance charge and insurance premium for which credit is extended $183.25"; time balance $683.25.

The evidence is sufficient to show that the seller of the automobile knew the balance of the purchase price would have to be financed but shows only one price ($975) was asked. On the date of the purchase, appellee was introduced to Mr. Norrell, appellant's manager, who told appellee he would finance the balance of the purchase price of the automobile. Mr. Norrell filled out the note and contract, told appellee that the payments would be $45.55 per month for fifteen months and would be a total of $683.25, of which sum $41.25 was insurance. The note and contract were signed by appellee in the presence of Mr. Norrell.

Appellee delivered to appellant written requests for admissions. Rule 169, T.R.C.P. Among these were requests for admissions that appellant paid only the sum of $500 for the note and contract, and that the contract and note were on blank forms furnished by appellant. These requests were not answered, and we will treat such failure to answer as an admission of the facts requested to be admitted. Weaver v. Weaver, Tex.Civ.App., 171 S.W.2d 898, Er.Ref.W.M.

Appellant argues usury is not here shown because the evidence shows: that the amount of the note represents a time or credit balance for the purchase of the automobile, and that appellant was an innocent purchaser for value of the note and contract.

If the $140.64 ($183.25 less $41.25 insurance and less $1.36 refund) was compensation, in excess of the maximum of 10% allowed by law as interest, Art. 5071, Vernon's Ann.Tex.Civ.St., then it was a charge for the use or forbearance or detention of money and was a usurious charge. Art. 5069, V.A.T.C.S. The trial court found the note was usurious and the judgment must be upheld if it has support in the evidence.

The facts here are very similar to the facts in Associates Inv. Co. v. Thomas, Tex.Civ.App., 210 S.W.2d 413, and Associates Inv. Co. v. Ligon, Tex.Civ.App., 209 S.W.2d 218, in each of which cases the holdings are adverse to the contentions of appellant here made that the evidence does not show a charge of usurious interest was made.

Appellant argues that the evidence shows the automobile was sold to appellee at a purchase on time price...