North American Acceptance Corporation v. Warren

• Decision Date: 06 March 1970
• Docket Number: No. 17415,17415
• Citation: 451 S.W.2d 921
• Parties: NORTH AMERICAN ACCEPTANCE CORPORATION, Appellant, v. Robert B. WARREN et al., Appellees.
• Court: Texas Court of Appeals

Page 921

451 S.W.2d 921

NORTH AMERICAN ACCEPTANCE CORPORATION, Appellant, v. Robert B. WARREN et al., Appellees.

No. 17415.

Court of Civil Appeals of Texas Dallas.

March 6, 1970.

Rehearing Denied April 3, 1970.

Ross H. Hemphill, William A. French, McCulloch, Ray, Trotti & Hemphill, Dallas, for appellant.

Edward R. Vinson, Fritz, Vinson, Merriell & Grynwald, Dallas, for appellees.

CLAUDE WILLIAMS, Justice.

Invoking the provisions of Art. 16, Sec. 11, of the Constitution of Texas, Vernon's Ann.St. and Articles 5069 and 5073, Vernon's Ann.Civ.St. of Texas, Robert B. Warren and wife brought this action against North American Acceptance Corporation, assignee of a note and lien from Beautyguard Manufacturing Company seeking to recover double the amount of alleged usurious interest and attorney's fees. Plaintiffs also alleged that the promissory note and lien securing same were void because of fraud and prayed for cancellation of such instruments.

The case was tried before the court and a jury. In response to special issues submitted the jury found that Robert B. Warren did not sign the promissory note, contract and guarantee, contract for labor and materials and trust deed, all dated December 18, 1962; that Mr. and Mrs. Warren did not personally appear before a notary public on December 18, 1962 and acknowledge that they signed the contract for labor and materials and trust deed of that date; that Beautyguard failed to quote either Mr. Warren or Mrs. Warren both a cash price and a time price on the home improvements involved; that Beautyguard failed to give either Mr. Warren or Mrs. Warren an option to select an insurance agent or an insurance company of their choice; that the reasonable market value of the home improvements made to the Warren home by Beautyguard was $1,322.76; that a reasonable attorney's fee for services of Warren's attorney would be $1,860; and that Mr. and Mrs. Warren did not ratify the note, contract and guarantee by making the payments in full to North American Acceptance Corporation in the sum of $2,799.60.

Based upon the foregoing findings the court found in its judgment 'that a 'Time Price' was not given Plaintiff and that the amount of money, viz., $1,049.60, paid by Plaintiff to North American Acceptance Corporation, over and above $1,750.00, constituted usurious interest, and the Court having made such additional * * * findings as were established by law, and being of the opinion that Plaintiffs should recover $2,099.20 for usury double damages, and $1,860.00 for attorney's fees' awarded plaintiffs judgment in the sum of $3,959.20. The court also ordered the note in question marked 'Paid' and the mechanic's lien released.

Appellant North American Acceptance Corporation (hereinafter referred to as North American) appeals from said judgment and presents two points of error in which it contends that this court should reverse and render the judgment.

Appellant's first point is:

'The court erred in failing to sustain Appellant's Amended Motion for Judgment Non Obstante Veredicto on the ground that Appellees failed in their burden of proof to show knowledge on the part of the Appellant that usurious interest was collected or intent on the part of Appellant to collect usurious interest.'

Reference to both Paragraph III of appellant's amended motion for judgment Non obstante veredicto as well as the fifth ground in appellant's motion for new trial reveals that in neither instance did appellant present the question of failure of appellees to prove intent on the part of appellant to collect usurious interest. In each instance appellant complained of the failure of the trial court to sustain its motion for judgment Non obstante veredicto 'on the ground that Plaintiffs failed in their burden of proof To show knowledge or notice on the part of the Defendant that usurious interest was collected.' (Emphasis supplied.) Accordingly, since the question of lack of proof of intent to collect usurious interest was presented for the first time in this court, such contention as advanced in the latter part of appellant's first point must be considered waived. Rule 320, Vernon's Texas Rules of Civil Procedure.

By appellant's second point of error it asserts that the trial court erred in failing to sustain its amended motion for judgment Non obstante veredicto on the ground that the transaction between Beautyguard and appellees was a sale of home repairs on a deferred payment plan and that any failure of Beautyguard to make disclosures was cured by appellant prior to any payment made by appellees.

Inasmuch as both points complain of refusal to grant motion for judgment Non obstante veredicto they are 'no evidence' points and must be judicially reviewed within well established rules. We have reviewed the entire statement of facts in the light of these rules and, having done so, we have concluded and so find that there is no merit to either of appellant's points of error and that same should be and are overruled.

A fair summary of the material evidence is now presented. Mr. Warren testified that he and his wife were the owners of a small home in Dallas. He is a laborer with a tenth grade education. His wife is employed as a maid and has a fourth grade education. In the latter part of 1962 a man named 'Pat', representing himself to be working for Beautyguard, came to his house and talked to him and his wife about home improvements in the form of a new roof, aluminum siding, and some material for the front of the house. The salesman quoted him and his wife with a total price for this work as being $1,750 and this was the only price ever quoted. Such price was to include 'interest and all.' The salesman had him sign a contract with the spaces left blank for the amount of the monthly payments and the number of payments, such blanks to be filled in later, and a copy of the entire instrument to be returned to him. This was never done. The only figures he authorized the Beautyguard salesman to fill in were the amount and the number of the monthly payments so as to total $1,750. This is the only instrument he ever signed in connection with this transaction. He was shown a note dated December 18, 1962 in the sum of $2,796.60 payable to Beautyguard Manufacturing Company and payable in sixty installments of $46.66 each. He denied that the signature 'Robert B. Warren' on this note was his signature. He was shown an instrument called 'Contract and Guarantee' which described the work to be done and the note, and denied that the signature shown thereon 'Robert B. Warren' was his signature. He was shown another instrument purporting to be a mechanic's lien covering his property and denied that the signature thereon was his signature. He never authorized his wife or anyone else to sign any of the instruments for him. He testified that he never at any time went before a notary public with his wife and acknowledged to anyone that he had signed any instrument in connection with the matter. He further said that the Beautyguard man never even mentioned insurance to him; that he was given no choice as to an insurance company or agent; that he did not know that insurance charges were going to be included in the price and that he never signed any application for insurance. The next day when he came home from work he found that the work had been started on the home. The job was completed the next day following. A week or two later a lady from North American called him from Atlanta and told him that their company had bought the note from Beautyguard but did not tell him the amount of the note or the number or amount of the monthly payments. He advised her that he had not signed any note. During this conversation there was no discussion concerning insurance. After he received the coupon book showing how much he had to pay, $2,799.60, he consulted an attorney who advised him that he might as well go ahead and pay if off as it would cost too much to fight the matter so he went ahead and paid off the note 'so as to save his home.'

Mrs. Warren testified that the only price the Beautyguard salesman ever quoted to her and her husband was $1,750; that he had them sign some kind of paper and said he would find out how much and how many the monthly payments would be and would fill them in and let them have a copy of the instrument. He never did so. The next day one of the Beautyguard men told her he had some papers for her to sign. She remonstrated that she could not sign because her husband was not there, but the man told her it was all right for her to sign for both herself and for her husband. She did so, thinking it was necessary. The man did not tell her what the papers were nor did she read them before signing. Upon being shown the note, contract and lien, at one point she said that she signed her husband's name on the note but she testified later that she did not know that these were the papers she signed. All she could say was that the signatures looked like her writing. She said she did not have her husband's permission to sign his name for him on any of the instruments. She said she did not acknowledge the mechanic's lien before a notary public. She related that the first time she knew that she and her husband were supposed to pay back $2,799.60 was when someone called on the telephone from Atlanta and when she was told 'she blew her top.' She said, 'I let him know we wasn't supposed to pay that much money and he said if we didn't, it would ruin our...