Cotton v. Thompson

• Decision Date: 20 May 1913
• Citation: 159 S.W. 455
• Parties: COTTON v. THOMPSON.
• Court: Texas Court of Appeals

159 S.W. 455

COTTON v. THOMPSON.

Court of Civil Appeals of Texas. Galveston.

May 20, 1913.

Rehearing Denied June 12, 1913.

Second Motion for Rehearing Denied July 1, 1913.

Appeal from Galveston County Court; Geo. E. Mann, Judge.

Action by William Thompson against Almon Cotton. Judgment for plaintiff, and defendant appeals. Affirmed.

J. V. Meek, of Houston, for appellant. Geo. G. Clough, of Galveston, for appellee.

McMEANS, J.

Plaintiff, William Thompson, appellee here, brought this suit to recover of the appellant, Almon Cotton, the penalty prescribed by the Revised Statutes for charging and collecting usury on money loaned.

Plaintiff alleged that on or about November 7, 1909, he borrowed of and from the defendant the sum of $30 for 30 days, and executed as security therefor his note and power of attorney, by the terms of which the defendant was authorized in the event of default in the payment of said sum to draw his said wages; that as interest upon said loan plaintiff paid the defendant the sum of $6 per month for 10 months, making the sum total of $60 paid to the defendant; that on or about December, 1909, plaintiff borrowed of and from the defendant the sum of $66 for 30 days, executed as security therefor his note and power of attorney, by the terms of which the defendant was authorized in the event of default in the payment of said sum to draw his said wages; that as interest on said loan the plaintiff paid defendant the sum of $7.65 per month for nine months, making the total amount paid equal $68.85; that on August, 1910, at the time the last payment of interest was made, plaintiff had paid the principal due upon said note, to wit, $66, also $30, borrowed of defendant on November 7, 1909; that on or about the 1st day of July, 1911, plaintiff borrowed of and from the defendant the sum of $30 for 30 days, and executed as security therefor his note and power of attorney, by the terms of which in the event of default in the payment of said sum defendant was authorized to draw his said salary, and plaintiff paid defendant upon same, as interest, $6 per month for four months, making the total $24 as interest paid upon said loan. Plaintiff further alleges that in October, 1911, plaintiff borrowed of and from the defendant the sum of $20, at which time his note for $30 was merged into his note for $20, making a note for $50, which note and power of attorney provided in the event of default in the payment that defendant would draw his said wages; that upon said $50 plaintiff paid as interest to defendant on or about November 1, 1911, the sum of $7.50 interest. Plaintiff further alleges that said interest charged was usurious and above the legal rate allowed by law, for this, that the same was in excess of 20 per cent. upon said loan, and that by being charged in said usurious interest plaintiff has been damaged in the sum of $320.70, double the amount of interest so charged. Plaintiff further alleges that said moneys were borrowed by the plaintiff of the defendant's agent at Galveston, Tex., and that said interest was paid to said defendant's agent at Galveston, Tex., to his great damage, $500.

The defendant demurred generally to plaintiff's petition, and also urged a special exception questioning the sufficiency of the petition, because it did not set out with particularity the contract alleged to have been made between himself and defendant, and because it did not give the name of defendant's agent with whom the alleged contract was made, and failed to give the dates when the several alleged payments were made. He also, in connection with the special exception, asked the court to require plaintiff to allege with particularity in his petition the omissions which were the basis of the special exception. The general demurrer, special exception, and the request above mentioned were overruled by the court. Defendant answered by general denial, and specially alleged that it was not true that he ever at any time, either in person or by his agent, loaned plaintiff any sum whatever; but that such transactions that he ever had with the plaintiff, acting through an agent, were that heretofore, prior to the bringing of this suit, on various days and dates, at plaintiff's special instance and request, the defendant, acting through an agent, purchased from plaintiff at different times certain portions of his wages to be earned under an existing contract of employment with Fowler & McVitie or other employer, with whom plaintiff was engaged at that time; that under each and all of said assignments which had been executed prior to the 2d day of November, 1911, when the money assigned was earned it was delivered to defendant's agent by the plaintiff, and each and all of said assignments, which were in writing, were either destroyed or the name torn therefrom and delivered to the plaintiff; that on the 2d day of November, 1911, at the special instance and request of plaintiff, this defendant, acting through his agent, purchased $57.50 of his salary to be earned while in the employ of Fowler & McVitie, and took a written assignment thereof, which was identical with the other assignments which had been taken prior thereto which were paid by the plaintiff, and plaintiff was paid by this defendant, through his agent, the sum of $50 for the amount of wages so assigned, being in said written assignment of November 2, 1911, a copy of said assignment is hereto attached, marked Exhibit A and made a part hereof.

Defendant further alleged that "plaintiff has not in good faith brought this suit, and that he should not be permitted to maintain and prosecute it any further, for this, that on March 4, 1911, the plaintiff, being desirous on that day of selling to this defendant the sum of $35 of his wages to be earned under a then existing contract for the sum of $30, and this defendant, acting through his agent, who had had prior transactions with plaintiff by purchasing his salary as alleged above, demanded that before he would have any further transactions or purchase any of plaintiff's wages that a full settlement of all transactions should be had, and that on said day there was a full and complete settlement of all past dealings, and plaintiff and defendant executed a mutual receipt in writing one to the other by which both parties released all claims and demands of every kind or character that either had against the other, and after the execution of said full and complete release, a copy of which is attached and marked Exhibit B, that on several occasions thereafter the defendant purchased from plaintiff certain portions of his wages or salary, and that on November 2, 1911, the defendant, acting through his agent, purchased from plaintiff the sum of $57.50 of his wages, and paid him therefor the sum of $50 in cash, and not one dollar of said money has ever been paid to defendant, nor has this defendant ever filed said assignment or a copy thereof, or in any way given notice thereof to plaintiff's employer; that there is now due this defendant on said assignment the sum of $57.50, and this defendant shows that after said release was executed by the plaintiff which induced him to continue to buy his certain portions of his salary that on several purchases made since the execution of said release all of the discounts that have been received by this defendant only amount to the sum of $37.50; that by reason of the execution of said release if, as a matter of fact, the plaintiff ever had any cause of action against this defendant for usury, as alleged by him, on the 4th day of March, 1911, plaintiff would be estopped to recover therein, and is now estopped; and that since said date as to any and all transactions had between plaintiff and defendant the discounts received by defendant on the purchase of plaintiff's salary only amounted to $37.50; and that by reason of said fact this court has no jurisdiction over said amount, or any amount that could be properly and legally litigated in this action, and defendant now here pleads said release in bar of the prosecution of this suit, or any claim prior to March 4, 1911, and he now here presents this plea also as a plea to the jurisdiction of this court, and prays that this cause be not further prosecuted."

The contract alleged by defendant to have been made between himself, through his agent, and the plaintiff, and made an exhibit to his answer, is dated November 2, 1911, and is as follows: "Know all men that I, the undersigned, for and in consideration of fifty dollars, to me in hand paid by Almon Cotton of Houston, Harris county, Texas, and for other valuable considerations, have sold and by this instrument do sell, alien, transfer, and set over to said Almon Cotton the sum of fifty-seven and 50/100 dollars out of my salary or wages now due or to become due me for the month of November, 1911, from Fowler & McVitie of the state of Texas, hereafter called party of the third part. In case the said sum of money so aliened and transferred is not fully satisfied out of said month's salary or wages, then all money, claims, or demands accruing thereafter to me from said part ...... up to said sum are hereby sold, aliened, and transferred to the said Almon Cotton, who is hereby authorized and empowered to ask for or sue for same in my name or his own name as he may elect; and I hereby direct the said party of the third part to pay to said Almon Cotton, or to his order, the said sum of money so aliened and transferred as aforesaid; in addition to the above, in case said amount is not paid by said part ...... of the third part, I further alien, assign, and transfer to the said Almon Cotton any sum of money due or which may become due me as salary or wages for any month subsequent to the month or months so assigned from any person, firm, or corporation by whom I may be engaged within a period of four years from date hereof, or so much of said salary or wages as may be required to satisfy...