Orr v. McDaniel

• Decision Date: 05 June 1929
• Docket Number: No. 3249.,3249.
• Citation: 30 S.W.2d 487
• Parties: ORR v. McDANIEL et ux.
• Court: Texas Court of Appeals

Page 487

30 S.W.2d 487

ORR v. McDANIEL et ux.

No. 3249.

Court of Civil Appeals of Texas. Amarillo.

June 5, 1929.

Rehearing Denied June 26, 1929.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Suit by L. A. McDaniel and wife against G. H. Orr. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Judgment reversed, 30 S.W.(2d) 489.

Bean & Klett, of Lubbock, for appellant.

Bledsoe, Crenshaw & Dupree, of Lubbock, for appellees.

JACKSON, J.

The plaintiffs, L. A. McDaniel and his wife, Ava McDaniel, in a suit in the district court of Lubbock county, Tex., recovered a judgment against the defendant, G. H. Orr, for the sum of $612, based on their contention that the defendant had collected, on a loan which he made to them, the sum of $250, more than 10 per cent. interest for the use of the money.

This is the second appeal in this case, and, for a statement of the pleadings, we refer to the opinion of Judge Randolph in the former appeal, 5 S.W.(2d) 175, 178, in which a judgment for the plaintiffs was reversed and the cause remanded because of the error of the court in directing the jury to find a verdict for the plaintiffs.

The case was again tried in the district court of Lubbock county, and, in response to the only issue submitted by the court, the jury found that the plaintiffs paid the defendant the $250 as interest.

On this finding the court rendered judgment that the plaintiffs have and recover from the defendant the sum of $612, which is double the amount of the interest paid by the plaintiffs to the defendant. From this judgment this appeal is prosecuted.

The appellant urges as error the action of the trial court in rendering judgment against him, because the finding of the jury that the appellees paid the $250 to the appellant as interest is not sufficient to authorize the judgment against him, because there is no finding of the jury of fraud and no finding of the jury that appellant intended to charge usurious interest, and that the contract upon which appellees' suit is based was a scheme or device to cover such intention of appellant.

The appellees alleged that the contract was drawn and written at the instance of the appellant for the fraudulent and illegal purpose of concealing the fact that he was charging appellees a usurious rate of interest.

The appellant alleged and offered testimony tending to prove that the $250 was not charged as interest, but was for the risk assumed by appellant in becoming a party to the mechanic's lien contract and for the services he rendered to appellees in connection with the building of the house.

In the opinion of this court on the former appeal, it is said:

"If the $250 received by defendant was, in good faith, intended as compensation for his services in paying for the labor and paying the bills for material, or as compensation for securing the loan for the plaintiff, and was not, in fact, compensation for the use of the money, the receipt of the $250 by the defendant would not, under those circumstances, constitute usury. This presented a question of fact which should have been submitted to the jury. It is evident that the court was convinced of the falsity of the defense to the charge of usury, but, as a jury had been sworn to try the issues of fact, it was a question for them to determine. Sugg v. Smith (Tex. Civ. App.) 205 S. W. 363-374; Bomar v. Smith (Tex. Civ. App.) 195 S. W. 964-971; Slaughter Co. v. Eller (Tex. Civ. App.) 196 S. W. 704.

"The contract not showing usury on its face, the question of whether or not the transaction was intended as an evasion of the law on usury was one for the jury. Andrews v. Hoxie, 5 Tex. 171; Mitchell v. Napier, 22 Tex. 120; Sheffield v. Gordon, 34 Tex. 530; Investment Co. v. Grymes (Tex. Civ. App.) 50 S. W. 467; Cotton v. Cooper (Tex. Civ. App.) 160 S. W. 597."

"Unlawful intent, essential.—It is of the essence of an usurious transaction that there should have been an unlawful and corrupt intent on the part of the lender to violate the law. The question of intent may be one of law but is usually for the jury to determine from the stipulations of the contract, the attendant circumstances and subsequent acts of the parties; such as the situation and object of the parties at the time of the loan, the character of the funds and use to be made of them, the time, place and manner of repayment. Whether the question of intent be of law or fact, depends exclusively upon whether usury appears upon the face of the transaction. * * * Where, indeed, the contract, upon its very face, imports usury, as by an express reservation of more than legal interest, there is no room for presumption, for the intent is apparent; res ipsa loquitur. But where the contract on its face is for legal interest only, it must be proved, that there was some corrupt agreement, or device or shift to cover usury; and that it was in full contemplation of the...