Furr v. Keesler

• Decision Date: 09 December 1907
• Docket Number: 415,416.
• Citation: Furr v. Keesler, 3 Ga.App. 188, 59 S.E. 596 (Ga. App. 1907)
• Parties: FURR v. KEESLER et al. (two cases).
• Court: Georgia Court of Appeals

59 S.E. 596

3 Ga.App. 188

FURR v. KEESLER et al. (two cases).

Nos. 415, 416.

Court of Appeals of Georgia

December 9, 1907

Syllabus by the Court.

A plea which alleges that the defendant signed the note sued on which contained a waiver of homestead, merely as surety for the principal maker; that the note on its face bore interest at 8 per cent. per annum; that the principal of the note was $125 and the time one year; that unknown to them the payee in addition to taking the full lawful interest, reserved or took at the time the note was delivered $25 usury, whereby they were released-is good in substance.

While to constitute usury it is essential that there should be at the time the contract is executed an intent on the part of the lender to take or charge for the use of the money a higher rate of interest than that allowed by law, yet this intention and the device or contract whereby usury is to be taken or reserved may be shown by circumstantial as well as by direct proof. There was sufficient evidence to justify the verdict.

Error from Superior Court, Habersham County; J. J. Kimsey, Judge.

Action by P. F. M. Furr against R. M. Keesler and others. Judgment for defendants, and plaintiff brings error. Affirmed.

J. C Edwards, for plaintiff in error.

C. R Faulkner and McMillan & Erwin, for defendants in error.

POWELL J.

J. C. Acrey, R. M. Keesler, and S. O. Keesler executed two joint promissory notes with homestead waiver for $62.50 each, payable one year after date, at 8 per cent. per annum, and made them payable to Mrs. H. M. Edwards or bearer. Furr sued upon them as bearer. However, he took the notes after maturity, and the defendants were therefore allowed to set up any defenses they might have asserted against the original payee. Acrey was not served. The two Keeslers pleaded and proved that they were securities only. They further pleaded "that the notes were given for $125; that, as soon as the money was paid over to J. C. Acrey, he paid back to Edwards $25, which amount was usurious; that the notes bear interest on their face for 8 per cent. from date; that the whole of the $25 is usury; that the defendants R. M. and S. O. Keesler did not know of the contract of usury until after they had signed the notes; that they were released from the notes by the usury that was in it." The evidence for the plaintiff showed that after the notes had been executed, and the $125 paid by Mrs. Edwards to Acrey, he handed her the notes and also $25 of the money, saying, "Here is the interest on these notes." The securities, when they signed, were ignorant that more than lawful interest was to be charged. Mrs. Edwards testified that the $25 was not paid as interest on the notes; but was paid upon a different transaction. The trial judge submitted the question fairly and clearly to the jury, which returned a verdict for the defendants.

1. It is insisted by the plaintiff that the plea of the defendant was legally insufficient...