Tillman v. Thatcher
| Decision Date | 11 June 1892 |
| Citation | 19 S.W. 968,56 Ark. 334 |
| Parties | TILLMAN v. THATCHER |
| Court | Arkansas Supreme Court |
APPEAL from Lafayette Circuit Court, WILLIAM S. EAKIN, Special Judge.
Reversed and remanded for new trial.
D. L. King for appellant.
The note was void for usury. Acts 1887, p. 50, 51; 41 Ark. 331. The account is thus left to stand upon its original merits. 35 Ark. 217; 105 N.Y. 539; 12 N.E. 48; 98 N.C. 107; 18 S.W. 713.
The appellee, Thatcher, was indebted to the appellants, merchants at Dallas, Texas, for goods bought of them, in the sum of $ 355. Thatcher gave his note, dated at Texarkana, Ark. to the appellants for three hundred and fifty-five dollars, bearing interest from date at 12 per cent per annum, in settlement of the account. The appellants, recognizing that the note was void for usury, sued on the original account. The appellee says the note was a satisfaction of the account, and pleads usury.
The court refused to instruct the jury, at the plaintiff's instance, that if the jury found from the evidence that the defendant was indebted to the plaintiffs in the sum of $ 355 upon an account for goods sold, and that the defendant gave the plaintiffs the note for the same bearing interest at the rate of twelve per cent per annum, the note was void for usury, and they should find for the plaintiffs. The court gave for the defendant four instructions, in effect the converse of the one refused.
"If a security founded upon an antecedent lawful consideration becomes void, or tainted by an usurious element, the original demand will be revived and may be enforced." Rountree v. Brinson, 98 N.C. 107, 3 S.E. 747. "The taint of the subsequent illegal contract does not relate back to or affect the original contract." Humphrey v. McCauley, 55 Ark. 143, 17 S.W. 713; Marks v. McGehee, 35 Ark. 217.
The court erred in refusing and in giving instructions.
Reversed and remanded for a new trial.
To continue reading
Request your trial
-
Beauchamp v. Bertig
...70; 18 R. I. 650; 148 Ill. 536; 129 Mass. 243. An ineffective or void deed does not affect a prior conveyance. 8 Ark. 74; 11 Ark. 475; 56 Ark. 334; 57 Ark. 550; Bump on Fraud Conv. 475; on Fraud Conv. § 427. An infant cannot assign his right to avoid his deed. 6 Ark. 109; 31 Ark. 364; Schou......
-
In re T.H. Bunch Co.
... ... the original valid debt or security. Humphrey v ... McCauley, 55 Ark. 143, 17 S.W. 713; Tillman v ... Thatcher, 56 Ark. 334, 19 S.W. 968; Johnson v ... Hull, 57 Ark. 550, 22 S.W. 176 ... In the ... last-cited case the original ... ...
-
Roth v. Merchants' & Planters' Bank
...void, the original consideration revived. 3 Pars. Cont. 305; 2 Dan. Neg. Inst. § 1272; 1 id. § 123; 4 Am. & Eng. Enc. Law (2d ed.) 162; 56 Ark. 334; 35 Ark. 217; 29 Ark. 401; 38 Ark. 661; S.W. 150; 2 Van Vleet, Former Adj. § 456; 9 Rich. Law, 451. The suit on the note and the suit at bar la......
-
Harris v. Whitworth
... ... absolutely void; and that an adverse judgment in a suit on ... the note is no bar to an action upon the contract of sale ... See, also, Tillman v. Thatcher, 56 Ark ... 334, 19 S.W. 968." ... In the ... Roth case, supra, Judge Battle quoted from the case ... of Russell ... ...