Parks v. Lubbock

• Decision Date: 22 May 1899
• Citation: 51 S.W. 322
• Parties: PARKS v. LUBBOCK et al.
• Court: Texas Supreme Court

Page 322

51 S.W. 322

PARKS v. LUBBOCK et al.

Supreme Court of Texas.

May 22, 1899.

Error to court of civil appeals of First supreme judicial district.

Suit by John B. Lubbock and others against Mary Fields, executrix. She died pending suit, and the cause was revived against R. C. Parks, administrator de bonis non. A judgment for plaintiffs was affirmed in the court of civil appeals (50 S. W. 466), and defendant brings error. Reversed.

Thos. B. Greenwood & Son, for plaintiff in error. A. W. Gregg and B. H. Gardner, for defendants in error.

GAINES, C. J.

This suit was brought to recover judgment upon a promissory note executed by Henry Fields and Mary Fields, of which the following is a copy:

"Five years after date, for value received, we promise to pay to the order of the Jarvis-Conklin Mortgage Trust Co., at its office in Kansas City, Mo., eight hundred and twenty-five dollars, lawful money of the United States, with interest thereon at the rate of six per cent. per annum, payable semiannually on the first days of May and November in each year, according to the tenor and effect of the interest notes of even date herewith, and hereto attached. This note is to draw interest from date at the rate of twelve per cent per annum, if either principal or interest remain unpaid ten days after due. At the option of the legal holder, after any of said interest notes remain due and unpaid ten days the whole of the principal and interest may be declared immediately due and payable. This note is given for an actual loan of the above amount, and is secured by a trust deed of even date herewith, which is a first lien on the property herein described. Dated at Kansas City, Mo., November first, 1889. Henry Fields. Mary Fields."

Attached to the note are 10 interest coupons, for $24.75 each. The note is indorsed on its back, in blank, and without date, to John B. Lubbock and William B. Lubbock, by the Jarvis-Conklin Mortgage Trust Company.

At the time the note was made the makers executed a deed in trust upon a certain tract of land to secure its payment. The deed in trust provided that in case of suit 10 per cent. should be recoverable by the trustee for the use of the attorney. The note was indorsed by the payee to John B. Lubbock and W. B. Lubbock. They, together with S. M. Jarvis, the trustee in the deed in trust, brought suit upon the note, and to enforce the lien of the mortgage. Henry Fields having died, the suit was brought against Mary Fields, his executrix. She died while the action was pending, and it was revived against R. C. Parks, as administrator de bonis non of Henry Fields' estate. The defendant pleaded that the contract was usurious, and sought to defeat a recovery for the interest. The trial court held that there was no usury in the contract, and gave judgment for the full amount claimed. The court of civil appeals took the same view of the transaction, and affirmed the judgment.

We incline to think that, treating the question as one to be decided by the common law, the court of civil appeals, in holding that the contract was not usurious, reached a correct conclusion. Interest, as known to the common law, is defined as "a compensation usually reckoned by a percentage for the loan, use, or forbearance of money." Abb. Law Dict.; 11 Am. & Eng. Enc. Law, 379. This does not embrace the compensation for the detention of money beyond the time at which it was agreed to be paid; that is to say, after the maturity of the debt. Therefore the parties to a contract for the payment of money might lawfully stipulate that, upon the failure of the debtor to pay at...