Mitchell v. Schimming & Eddins, 1212.

• Decision Date: 15 September 1932
• Docket Number: No. 1212.,1212.
• Citation: 52 S.W.2d 1080
• Parties: MITCHELL v. SCHIMMING & EDDINS.
• Court: Texas Court of Appeals

52 S.W.2d 1080

MITCHELL v. SCHIMMING & EDDINS.

No. 1212.

Court of Civil Appeals of Texas. Waco.

September 15, 1932.

Error from District Court, Falls County; E. M. Dodson, Judge.

Suit by A. C. Schimming and M. E. Eddins, composing the firm of Schimming & Eddins, against Rosa Mitchell. From a judgment for plaintiffs, defendant brings error.

Affirmed.

J. W. Spivey, of Waco, and T. B. Bartlett and Robert D. Peterson, both of Marlin, for plaintiff in error.

Oltorf & Oltorf, of Marlin, for defendants in error.

GALLAGHER, C. J.

This suit was instituted by A. C. Schimming and M. E. Eddins, composing the firm of Schimming & Eddins, hereinafter called plaintiffs, against Rosa Mitchell, hereinafter called defendant, to recover the balance due on a promissory note executed and delivered to them by her and to foreclose a vendor's lien on a certain house and lot in the city of Marlin. Defendant, on the 28th day of March, 1919, entered into a written contract with plaintiffs, by the terms of which she agreed to purchase from them the property aforesaid for the sum of $2,000, payable $100 cash, $12.50 on the 1st day of each and every month, beginning on the 1st day of April thereafter, and a further payment of $500 on November 1st thereafter. Said contract provided that all deferred payments should bear interest from the date thereof until paid at the rate of 10 per cent. per annum; that upon full and final payment plaintiffs should execute and deliver to defendant a deed to the property purchased; that defendant should have immediate possession thereof as a tenant pending full payment therefor, subject, however, to the condition that her failure to pay any installment with interest thereon when due should entitle plaintiffs to declare the contract terminated, should entitle them to retain all money theretofore paid them by defendant without further liability on their part, and should relieve them of any obligation to convey the property to her. Defendant paid $100 at the time the contract was executed and made certain payments from time to time thereafter until the 3d day of September, 1920, when plaintiffs at her request agreed to modify the contract by giving her a deed to the property and accepting from her a vendor's lien note for the remainder of the purchase price. They thereupon delivered said contract and a list of the payments made by defendant, to their attorney, and instructed him to ascertain therefrom the amount of the purchase price remaining unpaid and to prepare a proper deed conveying the property and a note for the remainder due. According to the calculation made by said attorney at the time, the unpaid installments of purchase money under the terms of the original contract amounted in the aggregate to $1,300. The deed prepared by him recited that the consideration therefor was $2,000; that $701.88 thereof had been paid; and that the balance was to be paid in installments of $12.50 each on the 1st day of each and every month thereafter, commencing on the 1st day of September, 1920, with interest on each such installment from the 28th day of March, 1918, until paid at the rate of 10 per cent. per annum, as evidenced by a certain promissory note of even date therewith. Said deed further recited that the parties to the original contract agreed that the same should not be superseded by said deed, but that such contract was thereby renewed and continued in full force and effect under all the terms of said deed. The note prepared by said attorney was for the sum of $1,300 and provided that the same should be paid in 104 equal installments of $12.50 each, one of such installments to be paid on the date of the note and one on the 1st day of each successive month thereafter, with interest on each of such installments from March 28, 1919, until paid at the rate of 10 per cent. per annum. Said note further provided that all past-due interest should bear interest at the rate of 10 per cent. per annum after maturity, and for accelerated maturity in the usual contingencies. Defendant made payments on the indebtedness evidenced by said note from time to time. Said payments were insufficient to satisfy the same, and plaintiffs, on August 21, 1929, instituted this suit to recover the balance due thereon and to foreclose their lien upon said property. Defendant pleaded usury, and the statute of limitation of four years as to all installments more than four years past due at the institution of the suit.

The case was tried to a jury. The court, at the conclusion of the evidence, indicated that in his opinion the testimony failed to raise any issue which should be submitted to the jury except the amount actually due on the note sued on. The parties thereupon agreed that the case should be withdrawn from the jury and that the court should ascertain by calculation the amount remaining unpaid on said note and render judgment accordingly, with foreclosure of vendor's lien on said property. Defendant stipulated that her agreement to withdraw the case from the jury should not be considered a waiver by her of her contention that her plea of usury had been established, nor to submit to the court for determination any issue of fact in respect thereto which might be raised by the evidence. The court rendered judgment against defendant in favor of plaintiffs for the sum of $1,491.60, and a further judgment foreclosing their vendor's lien on said property to secure the same.

Opinion.

Defendant presents assignments of error in which she asserts that her pleadings and the testimony introduced raised an issue of usury, which should have been submitted to the jury for determination. The specific charge in her pleadings was that the original contract hereinbefore described bound her to pay interest on unpaid installments of purchase money from March 28, 1919, and that by the terms of the deed executed and delivered to her by plaintiffs, she was required to pay interest on such installments from March 28, 1918, one whole year before she purchased the...