Miner v. Paris Exch. Bank

• Court: Texas Supreme Court
• Writing for the Court: BONNER
• Citation: Miner v. Paris Exch. Bank, 53 Tex. 559 (Tex. 1880)
• Decision Date: 01 June 1880
• Docket Number: Case No. 3617.
• Parties: FRED. W. MINER v. PARIS EXCHANGE BANK.

53 Tex. 559

FRED. W. MINER

v.PARIS EXCHANGE BANK.

Case No. 3617.

Supreme Court of Texas.

Jun. 1, 1880.

APPEAL from Lamar. Tried below before the Hon. R. R. Gaines.

The character of the suit is apparent from the opinion. The court charged that the evidence introduced by defendant did not sustain the plea of usury, and refused to charge that if the jury found upon calculation that the amount stipulated for in the note, by way of interest, amounts to more than twelve per cent. per annum upon the sum actually borrowed, then the same would be usurious. The third error assigned was, “the court erred in refusing the charge asked by defendants.”

W. H. Johnson for appellants.--The charge is clearly wrong if the evidence tended to establish the plea of usury. Sheffield v. Gordon, 34 Tex., 532. We contend that it not only tended to prove, but did prove, the fact of usury as declared by sec. 11, art. 16 of the constitution of 1876, upon the subject of interest and usury, and as defined by acts of 1876, p. 227, the act regulating interest. We contend that more than twelve per cent. per annum results to appellees upon said note as adjudged by the court, owing to its peculiar stipulations, and if that be so, the contract is usurious and the appellants have a right to have it so adjudged. The note is but a device to obtain a greater amount of interest than twelve per cent. per annum, and is therefore usurious under the constitution and laws above cited. In support of our views, we cite from our own court, Adriance v. Brooks, 13 Tex., 281, and Sheffield v. Gordon, 34 Tex., 532.

Wright & McDonald for appellee.--The court properly refused to give the charge asked by defendants, because the same was not warranted by the evidence. Hardy v. De Leon, 5 Tex., 245;Wheeler v. Moody, 9 Tex., 378;Fisk v. Wilson, 15 Tex., 435;Patton v. Gregory, 21 Tex., 513.

BONNER, ASSOCIATE JUSTICE.

Appellant Miner, on June 5, 1876, was indebted to appellee, Paris Exchange Bank, in the sum of $2,233.33, principal and interest.

Time of payment was extended to January 1, 1877, and legal conventional interest was calculated on the above amount to this last named date, which, with the amount then due, made the sum of $2,360, for which the note here sued on was given.

It was due January 1, 1877, bears interest at the rate of one??per centum per month from maturity, which of itself was not against the provisions of the statute regulating interest, and contains the further stipulation for ten per centum for attorney's fees in the event of suit.

Upon default of payment, suit was instituted upon the note, when appellant Miner set up the defense of usury, upon the grounds that it bears interest upon interest and provides for the payment of attorney's fees.

Neither the circumstances attending the transaction, nor other facts tending to prove usury than those above stated, were in evidence.

Judgment was rendered for the bank, from which this appeal is taken.

1. In the absence of evidence to the contrary, the law will not presume that a contract is usurious. Mills v. Johnson, 23 Tex., 329.

2. Compound interest is not of itself usurious. Mills v. Johnson, 23 Tex., 329;Lewis v. Paschal, 37 Tex., 318; Mills v. Bales, 11 Conn.,...