Campbell v. Oskey

• Court: Texas Court of Appeals
• Writing for the Court: Harper
• Citation: Campbell v. Oskey, 239 S.W. 332 (Tex. App. 1922)
• Decision Date: 26 January 1922
• Docket Number: (No. 1286.)
• Parties: CAMPBELL v. OSKEY.

Page 332

239 S.W. 332

CAMPBELL v. OSKEY.

(No. 1286.)

Court of Civil Appeals of Texas. El Paso.

January 26, 1922.

Rehearing Granted March 10, 1922.

Appeal from El Paso County Court, at Law; J. M. Deaver, Judge.

Suit by W. W. Oskey against A. J. Campbell. Judgment for plaintiff, and defendant appeals. Affirmed.

Lea, McGrady, Thomason & Edwards, of El Paso, for appellant.

J. A. Gillett, of El Paso, for appellee.

HARPER, C. J.

Appellee, W. W. Oskey, sued appellant, A. J. Campbell, in El Paso county court at law, alleging that on or about March 13, 1920, he borrowed $750 from Campbell, which he subsequently repaid with usurious interest amounting to $300, by reason of which he, said defendant, was indebted to him in the sum of $600, for which he asked judgment.

Defendant replied by general demurrer and general denial.

At the close of the testimony the trial judge peremptorily instructed the jury to return a verdict in favor of plaintiff for the full amount sued for, and, based on such directed verdict, judgment was rendered against defendant for $600.

The assignment is that it was reversible error to give a peremptory charge, and the proposition is:

"Proposition I. The plaintiff's right to recovery herein depended on whether the sum of $300 which he had paid to defendant in addition to $750 originally furnished by defendant was in fact paid as usurious interest or as a part of the profits derived, or to be derived, from a joint enterprise in the sale of certain jewelry which had been theretofore pledged by a third person and redeemed as a speculation by plaintiff with the $750 advanced by defendant. There was a sharp conflict in the testimony on this, the crucial point in the case, and it was error for the trial judge to invade the province of the jury as triers of fact and peremptorily direct them to return a verdict in favor of plaintiff against defendant."

This proposition is well taken. The undisputed evidence is that the $750 was used to purchase jewelry of the value of $1,800 or more.

The plaintiff testified that it was a loan to him at 10 per cent. per month for 60 days, but defendant testified that interest was not mentioned, but that he was to have $300 of the profits to be derived from the purchase. There are statements in the record by the latter and a letter written by him that indicate that the transaction was simply a loan at usurious interest, but another witness, shown to be disinterested, testified clearly that he overheard the conversation between the parties, and that the proposition was that the $300 was to be defendant's share of the profits for advancing the money. So clearly it was a question for the jury to determine from the credibility of the witnesses and the weight to be given to their testimony.

Reversed and remanded.

On Rehearing.

HIGGINS, J.

Upon further consideration the conclusion has been reached that the undisputed evidence discloses a usurious transaction and that the trial court properly gave a peremptory instruction in favor of the appellee.

The appellant testified:

"Mr. Oskey applied for a loan to take out or buy some jewelry from a man named Stein. Mr. Oskey came to me about wanting to borrow $750 about Saturday noon, near the middle of the day. He said he had these diamonds in sight and wanted to get them. I didn't want to let him have the money, and told him I didn't have the money to spare. He insisted he had $1,800 worth of diamonds, that he would consider it an everlasting favor, and he would also give me $150 within 10 days, and he would give me a note for $900, due in 60 days, which he did, and the note run for over a year, and he never said a word about it, and I told him I wanted my money, and he came in and wanted to take half of the jewelry and pay half of it, but I told him, `No, I wanted all my money.' I was in need of money at that time; I needed it bad and was borrowing money. When Mr. Oskey first approached me about getting the $750 from me to take that jewelry, he came up in the big hall in the lobby of the hotel. There were two or three people there. Mr. Wood was there. I remember Mr. Schutes; he sit around the lobby as well as I remember. I don't know whether any of the other people heard the conversation or not. He represented to me that the jewelry was worth $1,800. His idea in picking it up for $750 was he was figuring on getting a big gain out of it. He was to give me $150 in 10 days and $150 in 60 days. That $300 was for a part of the profits from the jewelry for the transaction; to finance the deal. That was all I was to get. That was $300. There wasn't anything said about any rate of interest on the note, never mentioned. I was to be a partner in the profits to the extent of $300. Mr. Oskey was to get the balance of the profits. * * *

"I told Mr. Oskey I didn't want the jewelry; I wanted my money, $750, and $150 in 10 days. He didn't pay it in 10 days; it was 60 days. I collected the $300. When he paid me that $150 in about 60 days, he did not say anything about or making a demand on me to credit that $150 on the note. No mention was made of it. He was to pay the face of this note in 60 days. The note was made for $900. That additional $150 was part of the profits. That amounted to $300 guaranteed profits. * * *

"I held the jewelry because I wanted some security for my money. I had $750 in hard-earned money tied up and I wanted some security. When he paid me the $900, I turned all the jewelry over to him, note and everything. I am not charging him any interest at all; interest is not mentioned even in the note there. I didn't charge him any interest. I was not to get anything besides the $300 out of the transaction. * * *

"I let Oskey actually have $750. In final settlement he paid me $300. He refunded the $750. When I advanced the $750, I took the jewelry as security. When I let him have this money, I expected the refund to me of every dollar that I let him have, and I was secured by jewelry that I said is probably worth $1,800. I did not advise Oskey before I would release this jewelry he must pay me $150 more than he had already paid me, or he would not get it. I wanted the face of the note. He had already paid me $150. I told him he must pay me $900 or he could not get that jewelry, the face of the note. He used $750 of my money for about 15 months. Interest was not mentioned. The consideration for which Mr. Oskey paid me $300 was as part of this contract, this jewelry that he was getting for $750 and going to sell for $1,800; that was why he paid me the $300. The use of the $750 had nothing to do with the $300; no interest was mentioned. Mr. Oskey paid me the $300 for financing this transaction. It was not for the loan of $750, but financing; letting him have $750 financing this deal. I let him have $750. If there had been no profit, my attitude toward the repayment was I had $1,800 worth of jewelry to keep. I would have kept the $1,800 worth of jewelry if he had not refunded to me the $750. I demanded that Mr. Oskey pay the $300 because he had made the proposition; it was his own proposition. He was not under obligation to pay me $300 for any other reason except he borrowed from me $750 and he was getting the $1,800 worth of jewelry, and he wanted the jewelry and was willing to give me $300 to finance the deal. The only consideration I gave...