Mitchell v. Napier

• Decision Date: 01 January 1858
• Citation: 22 Tex. 120
• Parties: ASA MITCHELL v. CHARLES G. NAPIER AND ANOTHER.
• Court: Texas Supreme Court

22 Tex. 120

ASA MITCHELL

v.CHARLES G. NAPIER AND ANOTHER.

Supreme Court of Texas.

1858.

No matter under what pretence it is cloaked, if the intention was to receive a greater rate of interest than the law allows for the use of money, it will affect the contract with the taint of usury.

Whether the transaction was so intended, when upon its face it does not appear to be usurious, is a question of fact for the decision of the jury.

Where a party is afforded an opportunity of explaining (by interrogatories propounded to him by the opposite party), and fails and refuses to do so, the rational and legal presumption is, that a disclosure of the truth would make against him.

This is upon the principle that the refusal to answer is deemed a confession of the truth of the alleged fact which the interrogatory is propounded to prove.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine. Suit by appellant against Charles G. Napier and Lewis S. Owings, to recover rent alleged to be due upon the following contract, to wit:

STATE OF TEXAS, COUNTY OF BEXAR.

Know all men by these presents, that I, Asa Mitchell, of the aforesaid state and county, have this day leased to L. S. Owings and Charles G. Napier, of the aforesaid state, for the consideration of sixty dollars per month, payable at the expiration of every month, a certain lot of land, situated in the city of San Antonio, state and county aforesaid, on the west side of the San Antonio river, being a part of the lot surveyed by T. Giraud, city surveyor for Garrett P. Post, on the 14th November, 1852, and recorded in the city surveyor's book, page 157: beginning at the north-east of the west butment of the new bridge, at the water's surface, thence south 87 1/4° west, 51 3/4 varas; thence north 13 1/2° west, 49 varas; thence north 89 2/3° east, 40 feet, to the water's edge; thence down the river, with its meanders, to the beginning. And the said lessees have the privilege of making any improvements upon the said lot, and to have the use and control of said lot for three years, upon the terms above mentioned, from the 1st of October, 1854; and the aforesaid L. S. Owings and Charles G. Napier or their legal representatives, have the further privilege, at any time during the three years named, of paying for the said lot two thousand dollars: I bind myself, my heirs and legal representatives, to make a good and sufficient title to the above premises, to the said L. S. Owings and Charles G. Napier, or their representatives. It is understood and agreed upon, that the above contract does not include the island opposite the aforesaid lot. It is further agreed upon, that should the said Owings and Napier decline paying the aforesaid two thousand dollars, at the expiration of three years as above named, the said lot reverts to my possession, together with all the improvements made thereon. In witness whereof, we have subscribed our names, and affixed a scroll for seals, the 1st day of October, 1854.

+---------------------------------------+
                ¦THOMAS S. ROGERS,¦ASA MITCHELL, [L. S.]¦
                +-----------------+---------------------¦
                ¦CHARLES HUMMELL, ¦L. S. OWINGS, [L. S.]¦
                +-----------------+---------------------¦
                ¦                 ¦C. G. NAPIER, [L. S.]¦
                +---------------------------------------+
                

There was no answer by Owings. The answers of Napier, upon which the case turned, are given in the opinion of the court; and attached thereto were certain interrogatories, propounded by him to appellant, which with the answers thereto, were as follows:

1st. What amount was the defendant, L. S. Owings, indebted to you, at the time you purchased of him his horses, carriages, and appurtenaces of the livery stable, about the 25th of May, 1855? Answer. About $1,000, for surety to Willis Hutton, on note of $975; for rent and money loaned, about $1,000.

2d. If you state he was indebted to you in any amount, state the several sums, or liabilities, to whom due, when contracted, and on what account? The second answered in the first.

3d. Did not said Owings convey to you directly, or to another, in trust for you, a large amount of notes, money, credits or property besides, of the value of five thousand dollars, or some such large amount; if yea, state what property was conveyed, of what it consisted, where situated, if conveyed in trust, to whom conveyed, and what was its value? Answer. He conveyed to me a note on Collins, a blacksmith, for about $200, with a credit of $40 thereon, and some time after, he gave me a deed of trust in my favor, on one hundred acres of land in Karnes county, near Helena, to secure me, as surety for him, to several notes in favor of E. Jones & Co., to the amount of something less than $1,000; the value of said one hundred acres, I am not able to state, as there are doubts as to the title.

4th. What consideration was paid by you for the property so conveyed by said Owings? State what amount of money you paid at the time, what amount you had previously advanced, and what amount was intended to secure you against liabilities, as surety of said Owings, and whether nine hundred dollars, or more, of said liabilities are not still unpaid by you; to whom is the same due? Answer. As to the amount paid, the bill of sale is on record showing the amount, and is higher testimony than my feeble recollection.

5th. Since you purchased the carriages, horses, harness, etc., of said Owings, have you not advanced him large amounts, or some amounts of money, and were not said advances made from the proceeds of collections made for said Owings, or from the property which he conveyed to you? Answer. No; I have not advanced to Owings since the purchase, one dime, nor have I collected one dime for him; and as to collections made from the property conveyed to me, I am not able to state, as I have kept no accounts of my own private sales, not expecting to be called on to give an account of my own private business.

6th. Did not a part of the indebtedness of said Owings to you consist of usurious interest, amounting to from $500 to $1,000, or some such large amount? Answer. No; I never charged, nor did Owings ever pay me, any interest whatever; and the statement of the defendant Napier, in regard to usurious interest, is false; for it was a contract for rent, as the contract states, and not one word was ever said about interest.

7th. Did not L. S. Owings pay you a large amount of usurious interest, between the 1st of October, 1854, and the answerings of these interrogatories? State the amount of usurious interest so paid, and whether the same has not exceeded one thousand dollars. I have answered the 7th interrogatory in the 6th answer.

8th. What was the value of the property of every description, and money, conveyed and paid to you, or in trust for you, from the 1st of October, 1854, up to the time of answering these interrogatories, by said Owings? Please annex a schedule or list thereof. Answer. I am not able to state the value of the property, as it consisted of broken down horses and buggies, some of which have died, some stolen, and some yet on hand. Two of the buggies I gave away; some I have sold on credit, and some yet on hand, it is impossible for me to make a schedule thereof.

9th. Have you not received from said Owings, since the first of October, 1854, property, money, and obligations, by conveyance directly to yourself, or in trust to another, of the value of seven thousand dollars or more? If you answer in the negative, then say whether it was not of the value of six thousand dollars, or more; if not, of the value of five thousand dollars, or more; if not, of the value of four thousand, or more; if not, of the value of three thousand, or more; if not, of the value of two thousand, or more? Answer. No; I have never received from Owings anything but what I have above stated, and what I may be able to realize out of the property received, is yet uncertain; but one thing I am certain of, that I am worse by the trade made with Owings, and am willing to gather up all the old fixings and deliver them over to any one who will indemnify me in the transaction.

10th. Have not the advances or payments you have made to said Owings been less than the value of the property you received, irrespective of the usurious interest? If you say not, you will please add a schedule of the advances so made, and persons to whom, and when. Answer. I think I have sufficiently answered this interrogatory in my previous answers; and I am not able to render a schedule.

11th. Was it not understood between you and Dr. Owings, when he sold out to you, that, after paying certain debts, the balance of...