Russ v. Motor Finance Co.

• Decision Date: 19 November 1932
• Docket Number: No. 11079.,11079.
• Parties: RUSS v. MOTOR FINANCE CO.
• Court: Texas Court of Appeals

55 S.W.2d 645

RUSS v. MOTOR FINANCE CO.

No. 11079.

Court of Civil Appeals of Texas. Dallas.

November 19, 1932.

Rehearing Denied December 17, 1932.

Appeal from Dallas County Court; Jno. A. Rawlins, Judge.

Suit by Mrs. Marguerite Russ against C. L. Mahaney, a loan broker doing business as the Motor Finance Company. From judgment dismissing plaintiff's suit, on exception to plaintiff's petition, plaintiff appeals.

Reversed and remanded.

Geo. Clifton Edwards, of Dallas, for appellant.

John H. Thomas, of Dallas, for appellee.

LOONEY, J.

Mrs. Marguerite Russ sued C. L. Mahaney, a loan broker doing business as Motor Finance Company, to recover penalties and reasonable attorney's fee authorized by statute for the collection of usurious interest. The defendant urged, and the court below sustained, an exception to plaintiff's petition (fifth amendment), and dismissed her suit, from which this appeal is prosecuted.

The exception, while special in form, is general in scope, and reads: "Because it affirmatively appears from paragraph 3 of said petition (i. e., Plaintiff's Fifth Amended Original Petition) that all of the matters and things of which she complains are fully barred by the two years statute of limitation in that said petition sets up a new cause of action against this defendant, showing her claim to be barred, because plaintiff's original petition and her first amended petition, both on file in this cause, based her cause of action upon a transaction had by the plaintiff and her husband, F. A. Russ, on the one side, and this defendant on the other, whereas her second amended petition based her cause of action against this defendant upon a transaction between herself on the one side and this defendant on the other, and in which the said F. A. Russ was not a party, and her third amended petition, filed herein on the 26th day of August, 1930, and her fourth amended petition, filed herein on the 8th day of April, 1931, and her fifth amended petition, to which this exception is levelled, based her cause of action upon a transaction had by the plaintiff and her husband, F. A. Russ, on the one side, and this defendant on the other side, and, therefore, sets up and pleads a different and a new cause of action against this defendant, and which cause of action is shown upon the face of said petition to be fully barred by the two years statute of limitation."

As indicated in the exception, the question decided below, and presented here, is whether the statutory action properly brought by the wife alone, on allegations in the original and first amended petitions to the effect that she and her husband acted jointly in borrowing money and executing the contracts upon which usurious interest was collected from plaintiff, was changed in the second amended petition and a new cause of action set up, by reason of the omission therefrom of all allegations in regard to the husband's participation in the borrowing of money and execution of contracts.

It is conceded that the suit was filed in time to arrest the statute of limitation, and there is no serious contention that the cause of action set up in the original and first amendment was not substantially reiterated in the third and subsequent amendments, but it is contended that the second amendment, by omitting all reference to the husband, as a participant in the transactions, set up an entirely new cause of action, so that, when the third and subsequent amendments were filed, the bar of two years' limitation was complete; hence the court did not err in sustaining the exception and dismissing the cause; this, as we gather from the record, presents the decisive question.

No recovery being sought upon contract, it is obvious that the suit is not ex contractu in nature, but is purely statutory; the contracts pleaded, upon which the alleged usurious interest was collected, are only collaterally involved, furnishing in part the surrounding or predicate facts, from which the asserted cause of action for the recovery of penalties arose. See Dean v. Maxfield (Tex. Civ. App.) 209 S. W. 466, 467. Although in the second amended petition the description of the contracts involved varies somewhat from that contained in the original pleadings, nevertheless we are of opinion that the cause of action continued in all material respects the same throughout; that is, it begun and remained an action by Mrs. Russ to recover statutory penalties for usurious interest collected from her by the defendant. The liability of defendant was the same, whether, as alleged in the original and first amended petitions, the borrowing of money and the execution of contracts were participated in jointly by Mrs. Russ and her husband, or as alleged in the second amended petition, the transactions were with Mrs. Russ alone; the cause of action asserted in each pleading being the same. Warnock v. Mills (Tex. Com. App.) 291 S. W. 850, and authorities cited.

This is not a question of variance between the allegata and probata, but simply the effect to be given a change in the description of certain contracts collaterally involved wrought by an amendment that omits the name of one of the makers, which, if not corrected by a later amendment, would doubtless present a fatal variance, but we do not think the failure to properly describe the contracts in the amended pleading would change or result in the abandonment of the original cause of action declared upon. See Thompson v. Swearengin, 48 Tex. 555; Rabb v. Rogers, 67 Tex. 335, 339, 3 S. W. 303, 305; Mo. Pac. Ry. Co. v. Smith (Tex. Sup.) 16 S. W. 803, 804; Texas & P. R. Co. v. Johnson (Tex. Civ. App.) 34 S. W. 186, 188.

Appellee also attempts to sustain the action of the court in dismissing the case upon grounds other than those urged in the exception; that is, it is argued that plaintiff, in her original and first amended petitions, alleged a cause of action different from the one set up in her second and subsequent amendments, in that, in the original and first amended petitions, the dates of contracts, the amounts of loans, and the damages claimed, differ from the corresponding allegations of the second and subsequent amendments.

In the original and first amended petitions, plaintiff begins the history of the transactions by alleging that on February 1, 1927, she and her husband borrowed $150 from defe...