First Nat. Bank of Montague v. Waybourn

• Decision Date: 12 May 1891
• Citation: First Nat. Bank of Montague v. Waybourn, 16 S.W. 554, 81 Tex. 57 (Tex. 1891)
• Parties: FIRST NAT. BANK OF MONTAGUE v. WAYBOURN <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 554

FIRST NAT. BANK OF MONTAGUE v. WAYBOURN et al.

Supreme Court of Texas.

May 12, 1891.

Commissioners' decision. Appeal from district court, Montague county; ALVIN C. OWSLEY, Judge.

Hodges & Walker and Stephens & Herbert, for appellant. Sparks & Smith and Jameson & Chambers, for appellees.

COLLARD, J.

September 24, 1887, appellant filed suit against appellees in the district court of Montague county for balance due on a note for $2,377.55, dated November 4, 1885, due six months after date, bearing 12 per cent. interest per annum from maturity, and 10 per cent. attorney's fee, credited with $1,091, paid July 24, 1886. Plea of suretyship was set up by all the defendants except J. W. Waybourn, who was the principal, and admitted by plaintiff. J. W. and W. W. Waybourn filed a sworn plea of usury as follows: That on the 23d day of September, 1884, defendants executed to plaintiff a note for $2,500, due four months after date, with 12 per cent. interest per annum from maturity; that on the 26th day of January 1885, defendants renewed the note by executing to plaintiff another note for $2,700, due four months after date, bearing 12 per cent. interest per annum from maturity; that at about the maturity of the last-named note they executed another note to plaintiff in renewal of the same for an amount unknown to them, (because the same is lost,) but they say it was for about $2,800, that it was credited with $608 in October, 1885, and that the note sued on was given in renewal of the last-named note; that since the execution of the $2,500 note defendants have not, nor has either of them, received any consideration for any one or either of the renewal notes, but all the notes were executed in renewal of the note for $2,500, and that at each renewal more than 12 per cent. interest per annum was added onto the face of the note; and that therefore the contract sued on is usurious and illegal. Plaintiff excepted to the plea of usury because it does not set out the rate of interest alleged to have been charged, and because it is too vague, indefinite, and uncertain to apprise plaintiff of the facts upon which defendants rely to sustain usury. The court overruled the exceptions, heard the evidence, sustained the plea of usury, and gave judgment October 5, 1888, for plaintiff for $801 and $81 attorney's fees, from which plaintiff appealed, and assigns as error the action of the court overruling the exceptions to the plea of usury for the reasons therein...