Lamb v. Ed Maher, Inc., 16161
| Decision Date | 26 April 1963 |
| Docket Number | No. 16161,16161 |
| Citation | 368 S.W.2d 255 |
| Parties | Warren Vivian LAMB, Appellant, v. ED MAHER, INC., Appellee. |
| Court | Texas Court of Appeals |
Kilgore & Kilgore, Dallas, for appellant.
McKool & McKool and Mike Aranson, Dallas, for appellee.
Appeal by Warren V. Lamb, defendant below, from a judgment in favor of Ed Maher, Inc., plaintiff below, for the sum of $254.93, rendered in a suit for deficiency judgment following the repossession and sale of an automobile theretofore sold by Maher to Lamb. The sole question presented here is whether the contract between appellant and appellee was tainted with usury. Appellant contends that he bought the automobile for a stated cash price and that usurious time credit charges were added. Appellee contends that appellant purchased the automobile for a time credit price and there is no usury.
The evidence on the trial of this case is undisputed. It consists of testimony of Frank Langford, assistant manager of Ed Maher, Inc., and Warren V. Lamb, together with various written exhibits. Lamb testified that he bought the automobile from Ed Maher in December of 1957; that he was quoted a price of $2595.00 by the salesman. He said they had 'a good deal of negotiations with reference to the car * * * as to the price and various other things;' that the main issue was the monthly payments. He said he wanted to keep his monthly payments within the limits of his salary as a telephone linesman. He testified he signed the documents presented to him and took the car. He further identified Exhibit One and said he recognized the figures thereon when he signed same; that he signed and agreed to Exhibit One.
Exhibit One referred to in the preceding testimony, was identified by Lamb as the purchase agreement and the following is a substantial copy of the pertinent portion thereof:
"Price $2,595.00
License 30.00
---------
Total 2,625.00
Discount $395.00
Tradein 250.00
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Total credit 645.00
---------
Balance 1,980.00
Insurance 208.00
---------
Total 2,188.00
Time Sales Charges 460.52
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Note First National Bank $2,648.52
Payments 36 @ $73.57
1st. payment due 2/1/58."
Exhibit Three, a conditional sales contract, was identified and introduced in evidence, the material portions of which are copied as follows:
'Whereas the undersigned purchaser has been quoted a cash price of $_____ for the automobile described below and has likewise been quoted a time-selling price as below stated and has elected to buy said automobile for such time-selling price: Now therefore, the undersigned seller hereby sells, and the undersigned purchaser hereby purchases on a time-basis, subject to the terms and conditions hereinafter set forth, the following property in its present condition, complete with standard attachments and equipment, delivery and acceptance of which is hereby acknowledged by purchaser, viz.:' (followed by a description of the automobile) 'for a time-selling price of $3,293.52 1 which said sum the purchaser hereby promises and agrees to pay to the order of seller as follows: $645.00 in cash or the equivalent before delivery of said automobile and at the time of the execution of this agreement, leaving a deferred balance of $2,648.52, which purchaser promises to pay to the order of seller at First National Bank in Dallas, Dallas, Texas, in 36 consecutive monthly installments beginning February 1st, 1958, 36 of said installments being in the amount of $73.57 and the final installment being in an amount equal to the deferred balance remaining unpaid, with interest thereon after maturity at 10% per annum, and if this contract be placed with an attorney for collection, 10% of the amount due hereunder, as attorney's fee.'
This Exhibit Three bears the signature of Warren V. Lamb. His testimony concerning the signing of this exhibit three was: that when he signed same it was not filled in; that he signed it in blank before the figure had been written in. He also said he never read the instrument either before or after he signed it
He further testified:
'A I didn't know it, but that sounds fair.'
Any doubt that may have existed concerning any discrepancies between the figures contained in Exhibit One and Exhibit Three was set at rest by a stipulation of Lamb's attorney. While Mr. Langford was testifying he was asked whether it was normal and customary practice for figures on the contract (Exhibit One) to be filled in the conditional sales contract (Exhibit Three) identical with the figures on the agreement between the parties; he responded in the affirmative. Thereupon Lamb's attorney stipulated that the figures on Exhibit One had been correctly filled in on Exhibit Three.
Mr. Langford testified that he had no personal knowledge of the transaction and that he was testifying for the purpose of identifying the records and stating the general custom that existed relating to sales. He identified Exhibit One, the sales contract, and the various figures contained thereon, stating that the sum of $460.52, called the time sales charge, was computed ordinarily from a rate book and represented a little more than 7% interest on $2,188.00 over a 36 month period.
OPINIONThe sole question presented by this appeal is one of usury vel non. Appellant in his one point of error, contends that since the contract between appellant and appellee is usurious all of the payments and credits made by appellant should be allocated to principal and when such allocation is made, nothing remains due by appellant to appellee. Appellant, in his supplemental brief, correctly states the issue to be decided; Also: 'Consequently, there is no evidence in this record that will support the trial court's implied finding that the car was sold for a higher time credit price but all of the evidence is entirely to the contrary.'
In our efforts to determine the solution to this 'no evidence' it must be observed that this judgment was rendered by the...
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