Dean v. Maxfield

Decision Date12 February 1919
Docket Number(No. 6029.)
Citation209 S.W. 466
PartiesDEAN v. MAXFIELD et al.
CourtTexas Court of Appeals

Appeal from McLennan County Court; James P. Alexander, Judge.

Suit by J. R. Maxfield and another against John M. Dean. Judgment for plaintiffs, and defendant appeals. Affirmed.

Pat M. Neff, of Waco, for appellant.

KEY, C. J.

J. R. and Marie S. Maxfield brought this suit against John M. Dean for the recovery of a statutory penalty for collecting and receiving usurious interest. There was a nonjury trial, which resulted in a judgment for the plaintiffs, and the defendant has appealed.

The first assignment of error complains of the action of the trial court in overruling a general demurrer to the plaintiffs' petition. The only proposition submitted under that assignment is that a mere contract to pay usury gives no cause of action; but the usury must actually be paid, and this is not done by the mere giving of new notes. The petition alleges that the plaintiffs executed and delivered to defendant two notes; that there was usury in the first note; that numerous payments were made, and thereafter another note was executed for the same debt, which latter note had been paid by the plaintiffs.

The petition was good against a general demurrer, and the first assignment is overruled.

The second assignment charges that error was committed in overruling appellant's special exception to the petition, based upon the proposition that it showed that one Thos. S. McCrain was a necessary party to the suit.

While the petition shows that McCrain signed the notes, it alleges that he did so as surety only. Appellees' cause of action is based upon article 4982 of the Revised Statutes, which reads as follows:

"If usurious interest, as defined by the preceding articles, shall hereafter be received or collected upon any contract, either written or verbal; the person or persons paying same, or their legal representatives, may, by action of debt, instituted in any court of this state having jurisdiction thereof, in the county of the defendant's residence, or in the county where such usurious interest shall have been received or collected, or where said contract has been entered into, or where parties paying same reside when such contract was made, within two years after such payment, recover from the person, firm or corporation receiving the same double the amount of such usurious interest so received and collected."

The plaintiffs alleged in their petition that they made the payments of interest which gave rise to the statutory cause of action, and therefore it was not necessary that McCrain should be made a party to the suit. His liability upon the notes was not absolute, but was only conditional upon the failure of the plaintiffs, who were principals upon the note, to pay the same. Therefore the payments made by the plaintiffs did not inure to the benefit of McCrain, and that fact distinguishes this case from Alston v. Orr, 105 S. W. 234, relied on by appellant.

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3 cases
  • Dickey v. Bank of Clarksdale
    • United States
    • Mississippi Supreme Court
    • 7 novembre 1938
    ... ... Crum, 92 So. 252; Holland v. Bank, 252 S.W. 359; ... Ector v. Osborne, 13 A.L.R. 1207; Teshner v ... Roome, 212 P. 473; Dean v. Maxfield, 209 S.W ... 466; Sheldon v. Haxtun, 91 N.Y. 124; Neal v ... Rouse, 93 Ky. 151, 19 S.W. 171; Fowler v. Garrett, 3 ... JJ ... ...
  • Russ v. Motor Finance Co.
    • United States
    • Texas Court of Appeals
    • 19 novembre 1932
    ...the surrounding or predicate facts, from which the asserted cause of action for the recovery of penalties arose. See Dean v. Maxfield (Tex. Civ. App.) 209 S. W. 466, 467. Although in the second amended petition the description of the contracts involved varies somewhat from that contained in......
  • O'Malley v. United States Building & Loan Ass'n
    • United States
    • Idaho Supreme Court
    • 24 avril 1931
    ...57 Iowa 39, 10 N.W. 286; Bullard v. Raynor, 30 N.Y. 197; Presnall v. D. R. Burgess & Co., 181 Ala. 263, 61 So. 804; Dean v. Maxfield, (Tex. Civ. App.) 209 S.W. 466.) P. O'Malley and H. J. Swanson, for Respondent. "The statute of limitations does not begin to run against a recovery of usury ......

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