Rosetti v. Lozano

• Decision Date: 13 November 1902
• Citation: 70 S.W. 204
• Parties: ROSETTI v. LOZANO et al.
• Court: Texas Supreme Court

70 S.W. 204

ROSETTI v. LOZANO et al.

Supreme Court of Texas.

November 13, 1902.

Certified questions from court of civil appeals of Fourth supreme judicial district.

Action by John T. Rosetti against J. J. Lozano and others. From a judgment granting insufficient relief, plaintiff appeals to the court of civil appeals. Certified questions from the court of civil appeals.

A. Winslow, for appellant. Nicholson & Mullally, for appellees.

WILLIAMS, J.

Certified questions from the court of civil appeals for the Fourth district, as follows:

"The action was against appellee upon a note payable to appellant, dated January 4, 1899, for $235, due one year after date, with ten per cent. interest per annum from maturity until paid, with provision for ten per cent. attorney's fees if placed in the hands of an attorney for collection after maturity. Appellee Ygnacio Lozano under oath pleaded: `That he received from plaintiff $200, and signed the note for $235; that the extra $35 was the usurious interest for one year; that this device was a direct fraud resorted to by plaintiff to evade the usury laws; that at the expiration of the first year he paid plaintiff $35 again as interest for the second year, and at the expiration of the second year he paid plaintiff $17.50 as interest for six months,—all in pursuance of the agreement as evidenced by the note to charge $35 a year interest on the $200 loaned; that plaintiff has thus charged, received, and collected interest in excess of 10 per cent. per annum; that defendant has paid plaintiff the sum of $87.50 usurious interest; that defendant prays that said payment be applied to the principal of said note; that defendant be allowed double the amount of the usurious interest so paid by him, and the balance then found to be due defendant is ready and willing to pay.' To this answer plaintiff filed supplemental petition. The facts as found by the trial judge in accordance with testimony, are as follows: `On the 4th day of January, 1899, the plaintiff loaned to the defendant Ygnacio Lozano two hundred dollars in cash, and received from the defendant the note sued on for $235, bearing interest at the rate of 10 per cent. per annum after maturity one year from date; all of the defendants except Ygnacio Lozano being sureties on said note. On July __, 1899, the defendant paid plaintiff $17.50 for six months' interest on said note, and thereafter four semiannual payments of $17.50 each were paid by the defendant and collected by the plaintiff as interest on said note; the total amount received by plaintiff from defendant as interest on said loan of $200 from July __, 1899, to July, 1901, being the sum of $87.50.' The trial court concluded the defendants are entitled to recover of plaintiff the sum of $175, being double the amount received as interest on the loan of $200, and the plaintiff should have judgment for the balance due on said note, to wit, $25, with 6 per cent. interest thereon from date of judgment, and all costs; and judgment was entered accordingly.

"Question: Were appellees, under the above facts, entitled to the credit upon the principal of double the sums that had been collected as interest? The question is asked in view of a decision of the court of civil appeals for the Fifth district in the case of Building Co. v. Peightal, 67 S. W. 524, with which this court does not agree. We beg to refer also to Association v. Daugherty, 66 S. W. 131."

The question as put opens up every one upon which depends the defendants' right to recover double the amount of interest paid. The reference to the first case cited in the question indicates that the particular point upon which the decision of this court is desired is the one there decided by the court of civil appeals of the Fifth district. But the question asked is much broader, and involves another, which we deem it necessary to notice, in order to avoid misapprehension. The statutory provisions under which the question arises are articles 3104, 3106, Rev. St., as follows:

"All written contracts whatsoever, which may in any way, directly or indirectly, violate the preceding article by stipulating for a greater rate of interest than ten per cent. per annum, shall be void...