Rutherford v. Smith
| Decision Date | 31 October 1866 |
| Citation | 28 Tex. 322 |
| Parties | ROBERT A. RUTHERFORD v. JAMES SMITH. |
| Court | Texas Supreme Court |
An allegation, in a petition on a promissory note, that the payee, for a valuable consideration, transferred the note to the plaintiff by indorsement, is a sufficient averment of title in the plaintiff to the note. Pas. Dig. art. 1427, note 537, p. 349.
A promissory note is not, prima facie, usurious because it bears interest from a time anterior to its date, by reason of which the total interest, according to the terms of the note, amounts to more than lawful interest, calculated from the date of the note. Pas. Dig. art. 3942, note 932; 5 Tex. 190.
If, in point of fact, the reservation of interest, anterior to the date of the note, was a device to cover usury, the defendant must establish that fact by evidence aliunde; it will not be heard when the point is for the first time made on error.
ERROR from Travis. The case was tried before Hon. A. W. TERRELL, one of the district judges.
This was a suit brought by defendant in error, James Smith, against plaintiff in error, Robert A. Rutherford, in the district court of Travis county, for debt on promissory note. The petition, filed January 19, 1861, alleges that defendant, Robert A. Rutherford, “made, executed, and delivered to H. Crocheron his obligation in writing, substantially as follows:
$1,174.72. On the first day of January next, I promise to pay H. Crocheron, or bearer, $1,174.72, with ten per cent. interest thereon from 1st January last till paid, value received. The consideration of this note is land sold by said Crocheron to me. His deed therefor bears even date herewith.
R. A. RUTHERFORD.
BASTROP, May 6, 1859.”
That said note was, on the day of its execution, transferred by indorsement to your petitioner, for valuable consideration, whereby defendant became liable and bound to pay petitioner the amount of money in said written obligation specified, according to the tenor and effect thereof. After which follow the usual averments of failure to pay by defendant, and prayer for citation and judgment for “principal debt, interest, cost,” etc. The issuance and service of citation were waived. Judgment by default for $1,414.58, rendered January 19, 1861, the same day the petition was filed.
Bowers & Walker, for plaintiff in error. The counsel for plaintiff in error relies upon the following points and authorities:
I. The allegations in the petition do not disclose a good cause of action in favor of the plaintiff below.
It is an elementary rule, recognized by frequent decisions of this court, that the plaintiff must exhibit a good cause of action by appropriate averments in the petition, as was stated by Justice BELL in Gray v. Osborn, 24 Tex. 158. And as was said by Justice WHEELER in Jennings v. Moss, 4 Tex. 452, “to show a right of action, the plaintiff must allege title in himself, and some act of the defendant creating a legal liability on his part.”
The petition in this cause does not allege title to the note in plaintiff. The averment that the note was, on the day of its execution, transferred by indorsement to plaintiff, is no sufficient averment that it was so indorsed by the payee of the note, or that the plaintiff was at the time of commencing the suit the owner and holder of the note. Malone v. Craig, 22 Tex. 610; Frazier v. Todd, 4 Tex. 460. The allegation of ownership being essential to the cause of action, the omission is not cured by the judgment. The objection goes to the foundation of the action. Ramsey v. McCauley, 2 Tex. 191;Salinas v. Wright, 11 Tex. 577; Sneed v. Moodie, 2 Tex. 160; Merlin v. Manning, 2 Tex. 351;Thigpen v. Mundine, 24 Tex. 283.
II. The petition shows that the contract sued on is usurious, and therefore it was error in the court below to render judgment for any portion of the interest. The note is dated May 6, 1859, payable January 1, 1860, for $1,174.72, with ten per cent. interest thereon from January 1, 1859. The petition asks for judgment for interest, and the judgment is for $1,414.58, showing that interest was computed from the 1st day of January, 1859, to January 19, 1861, the date of rendition of judgment, at ten per cent.
It will be seen that the amount of interest stipulated to be paid for the use of $1,174.72, from the 6th day of May, 1859, the date of the note, until its maturity, January 1, 1860, (seven months and twenty-five days), amounts to $117.47. The law only authorizes...
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...for that power is given him by charter. In support of indulging the intendments above mentioned, we cite the following cases: Rutherford v. Smith, 28 Tex. 322; Insurance Co. v. Gibbs, 35 S. W. 679; Insurance Co. v. Pearlstone & Smith, 18 Tex. Civ. App. 706, 45 S. W. 832; Pennington v. Schwa......
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