Maloney v. Andrews
| Decision Date | 28 July 1972 |
| Docket Number | No. 4561,4561 |
| Citation | 483 S.W.2d 703 |
| Parties | Charles D. MALONEY, Appellant, v. Adolphus ANDREWS, Jr., Individually and as Attorney-in-fact for Frances A. Dillingham, as Independent Executrix of the Estate of Adolphus Andrews, Deceased, Appellee. |
| Court | Texas Court of Appeals |
Matthews & Matthews, Tom D. Matthews, Jr., Dallas, for appellant.
James G. Clement, Irving, for appellee.
Adolphus Andrews, Jr., individually and as attorney-in-fact for Frances A. Dillingham, as Independent Executrix of the estate of Adolphus Andrews, deceased, brought this suit against Charles D. Maloney, seeking to recover $4,428.00 in unpaid rentals under a lease agreement. The jury awarded $600.00 to plaintiff as rentals due for the period July 1, 1970, through June 31, 1972, and $600.00 as attorney's fees. The defendant, Charles D. Maloney, filed a counterclaim for usury which was denied by the court on plaintiff's motion for an instructed verdict. Maloney has filed an appeal which is limited to the ruling of the court in sustaining plaintiff's motion for an instructed verdict and denying the defendant's counterclaim for usury.
Appellant Maloney urges two points in which it is contended that the court erred in overruling his motion for judgment non obstante veredicto and erred in sustaining appellee's motion for an instructed verdict on the question of usury, because appellant alleged and introduced evidence showing that he contracted for, was charged and paid interest at an usurious rate.
The parties hereto executed a written lease agreement for a building dated June 15, 1968, for a term of two years with an option to renew for an additional two year period. The lease provides that appellant will pay a 'late charge' of $1.00 per day for each day appellant is delinquent in paying rent. The lease provided in part as follows:
'Lessee agrees to pay Lessor over and above the rental payment a late charge of $4.00 for the fourth day after Lessee is three days delinquent in paying the monthly payment in advance and a late charge of $1.00 for each day delinquent thereafter;'
Appellant contends that the lease provision calling for the payment of late charges constitutes a contract for 'interest' as that term is defined by Article 5069--1.01 (a), Vernon's Ann.Tex.Rev.Civ.St., and that appellee is therefore liable to appellant in accordance with the penalties stated in Article 5069 supra. The record shows that Mr. Hubbard, the authorized agent of appellee, prepared a schedule charging appellant $9,000.00 for failure to pay rental payments when due; that appellee's attorney mailed to appellant's attorney a letter wherein appellee's attorney was instructed by his client to recover the late charges. A portion of the letter reads as follows:
'I point out to you that over the term of the lease, late charges are cumulative for each month and increase geometrically, so that over the remaining term of the lease, late charges will amount to $9,000.00, and will continue at $720.00 per month thereafter.'
Two written statements dated October 1, 1970, and October 31, 1970, were received by appellant. Each rent statement charged appellant $1.00 per day for each month's unpaid rent on a cumulative basis. A rent statement dated June 1, 1970, was received by appellant. That statement charged appellant $55.00 based on the charge of $1.00 per day for each day a month's rent remained unpaid. Appellant paid the $55.00 charge by check.
Appellee contends that the controlling question on appeal is the lease agreement in question and that the provision therein for 'late charges' is not a transaction or contract which is subject to the usury statutes. He contends that his position is sustained by the wording of Section 11, Article XVI of the Texas Constitution, Vernon's Ann.St., and by Article 5069 and prior statutes relating to usury. Section 11, Article XVI of the Texas Constitution as amended on November 8, 1960, provides that:
'The Legislature shall have authority to classify Loans and lenders, license and regulate Landers, define interest and fix maximum rates of interest . . ..' (Emphasis supplied.)
It is noted that this provision of ...
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Russell Scott Jones & Westex Notrees, LP v. R.O. Pomroy Equip. Rental, Inc.
...and a loader from Roper. We have previously held that there can be no usury in a lease transaction. Maloney v. Andrews, 483 S.W.2d 703, 704 (Tex.Civ.App.-Eastland 1972, writ ref'd n.r.e.); see also Potomac Leasing, 743 S.W.2d at 713; Brokers Leasing Corp. v. Standard Pipeline Coating Co., 6......
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Russell Scott Jones & Westex Notrees, LP v. R.O. Pomroy Equip. Rental, Inc.
...and a loader from Roper. We have previously held that there can be no usury in a lease transaction.Maloney v. Andrews, 483 S.W.2d 703, 704 (Tex. Civ. App.—Eastland 1972, writ ref'd n.r.e.); see also Potomac Leasing, 743 S.W.2d at 713; Brokers Leasing Corp. v. Standard Pipeline Coating Co., ......
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Bayou Place Ltd. P'ship v. Alleppo's Grill, Inc.
...transactions and to loans and lenders of money and does not in any way refer or apply to lease agreements." Maloney v. Andrews, 483 S.W.2d 703, 704 (Tex. Civ. App. 1972); e.g. Jones v. R.O. Pomroy Equip. Rental, Inc., 438 S.W.3d 125, 133 (Tex. App. 2014); Potomac Leasing Co. v. Hous. Auth. ......
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Schepps Grocery Co. v. Burroughs Corp.
...Ltd. v. Chandler Leasing Division, 572 S.W.2d 53 (Tex.Civ.App.-Houston (1st Dist.) 1978, no writ) and Maloney v. Andrews, 483 S.W.2d 703 (Tex.Civ.App.-Eastland 1972, writ ref'd n. r. e.), both holding that late charges do not arise from a forbearance of money so as to make applicable the us......