Shaw v. Lumpkin

• Decision Date: 12 May 1922
• Docket Number: (No. 2559.)
• Citation: 241 S.W. 220
• Parties: SHAW v. LUMPKIN.
• Court: Texas Court of Appeals

Page 220

241 S.W. 220

SHAW v. LUMPKIN.

(No. 2559.)

Court of Civil Appeals of Texas. Texarkana.

May 12, 1922.

Rehearing Denied May 18, 1922.

Appeal from Bowie County Court; O. B. Pirkey, Judge.

Action by J. D. Lumpkin against H. L. Shaw. From a judgment for plaintiff, defendant appeals. Affirmed.

From January 25, 1919, to March 26, 1921, Shaw purchased goods of Lumpkin, a merchant, on credit. Shaw was to pay the price at which Lumpkin sold such goods and interest thereon from the dates of the purchases at the rate of 10 per cent. per annum. The purchases amounted to $241.99, January 17, 1920, when the account was closed by Shaw's note for $260.80, $18.81 of which was interest claimed by Lumpkin. The purchases from the date last mentioned amounted to $459.49, October 9, 1920. The account, as it stood at that date, was closed by a note Shaw made October 14, 1920, for $499.49, $40 of which was interest. The purchases from October 13, 1920, amounted to $83.96, March 26, 1921. The account, as it stood at the last-mentioned date, was closed by a note for $87.92, $3.96 of which was interest Lumpkin claimed. Each of the notes stipulated for 10 per cent. interest on the amount thereof from its date, and for the usual attorney's fees. The suit by Lumpkin was on the three notes. In his answer Shaw alleged that, when Lumpkin called on him to execute the $499.49 note, he refused to do so until Lumpkin agreed to furnish him an itemized statement of the account and to credit the note with any overcharge therein. Shaw then alleged that Lumpkin never furnished a statement of the account as he agreed to, and further alleged that the account included erroneous charges against him, amounting to $200, which should have been credited on the note, and that the consideration for the note had failed in that amount. An exception to these allegations was sustained by the court. Shaw also alleged that the interest charged on the accounts and stipulated for in the notes was in excess of 10 per cent., was therefore usurious, and for that reason should be deducted from the amount Lumpkin sought to recover of him. The jury, on an issue submitted to them, determined to the contrary. The appeal is from a judgment in Lumpkin's favor for the amount he sued for.

Keeney & Dalby, of Texarkana, for appellant.

Sid Crumpton, of Texarkana, for appellee.

WILLSON, C. J. (after stating the facts as above).

The assignment attacking as erroneous the action of the court in sustaining the exception to part of Shaw's answer, referred to in the statement above, is...