Dunman v. Harrison

• Decision Date: 15 May 1897
• Citation: 41 S.W. 499
• Parties: DUNMAN et al. v. HARRISON.
• Court: Texas Court of Appeals

41 S.W. 499

DUNMAN et al. v. HARRISON.

Court of Civil Appeals of Texas.

May 15, 1897.

Error from district court, Tarrant county; W. D. Harris, Judge.

Action by John G. Harrison against R. L. Dunman and others on a note, and to foreclose a mortgage securing the same. There was a judgment and decree in favor of plaintiff, and defendants bring error. Reversed.

Lindsey & Goodson, for plaintiffs in error. S. W. Stewart and Sam Camp, for defendant in error.

STEPHENS, J.

This was an action of debt brought by John C. Harrison to recover of R. L. Dunman the balance alleged to be due upon a promissory note of the latter held by the former, but given originally to the Western Mortgage Investment Company. The defense was usury. On the 8th day of October, 1887, a written contract was entered into between these parties, by the terms of which Harrison undertook to extend for two years, from the 1st day of October, 1887, the payment of two notes, including the one sued on, held by said mortgage company, and then (October 1, 1887) past due, aggregating, principal and interest, the sum of $21,386.35, the rate of interest specified therein being 10 per cent. per annum, and the notes being secured by a deed of trust on lands of Dunman. Harrison also bound himself in this instrument to give a like extension upon a judgment recovered by him against Dunman, which, with costs, amounted to $8,998.24, and also a judgment recovered by S. D. Rainey, Jr., against Dunman, which, with costs, amounted to $3,864.08, both judgments providing for interest at the rate of 12 per cent. per annum. The obligation assumed by Dunman was thus expressed: "Now, therefore, in consideration of the premises, it is hereby agreed that said Dunman does hereby bind himself unto the said John C. Harrison to pay off and discharge said notes given to said mortgage company and said judgments to the said John C. Harrison or his order, on or before the 1st day of October, 1889; and the said Dunman also agrees to pay interest on the aggregate amount now due upon said notes, to wit, $21,386.35, at the rate of twelve per cent. per annum from the 1st of October, 1887, until paid, and that this increased rate of interest shall be considered as embraced in said notes and secured by the mortgage aforesaid; and the said Dunman also agrees to pay interest on each of said judgments (including interest, attorney's fees, and costs) at the rate of twelve per cent. per annum, from the 1st day of October, 1887, until paid, and to pay off and discharge the same on or before the 1st day of October, 1889. No interest herein agreed to be paid is payable to the said Harrison after the 1st day of October, 1889." Dunman further agreed to keep all the taxes paid upon the lands included in the mortgage. Other matters were covered by this contract, which it is not important to set out. Dunman further agreed to pay an additional sum of ¼ of 1 per cent., which, as the agreement was construed by Harrison, was ¼ of 1 per cent. on all that Dunman owed, including the judgment held by Harrison against him; but the oral stipulation was that this ¼ of 1 per cent. was to cover exchange, though the court found, upon sufficient evidence, that it was not in fact for exchange, but for extra interest.

The first question for us to determine is whether the contract so made, including the oral feature, was usurious, the trial court holding that it was. Our constitution, as amended September 22, 1891, provides (article 16, § 11) that "all contracts for a greater rate of interest than ten per centum per annum shall be deemed usurious," though the statute enacted in pursuance thereof seems to restrict the constitutional declaration to written contracts. Rev. St. 1895, arts. 3103, 3104. But the latter of these articles provides that "all written contracts whatsoever which may in any way, directly or indirectly, violate the preceding article, by stipulating for a greater rate of interest than ten per cent. per annum, shall be void and of no effect for the amount or value of the interest only." We are therefore of opinion that as the contract under consideration was a unit, though not all expressed in the written instrument, it should be treated as a violation, indirectly at least, of the usury statute; and, if this be not a sound interpretation, then we think the restrictive feature of the statute should be held to be in violation of the more comprehensive and emphatic declaration of the constitution.

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