Marsh v. Tiller , 1927 Tex. App. LEXIS 65 ( 1927 )

The trial court did not submit and appellant did not ask him to submit to the jury an issue as to whether the $3,150 note was usurious, as alleged by him, or not. Therefore this court must assume, in support of the judgment, that the note was not usurious and that the trial court found it was not, unless the testimony forbade such a finding (art. 2190, R.S. 1925); for the burden of proving the note was usurious, as alleged, was on appellant. Rushing v. Bank (Tex.Civ.App.) 162 S.W. 460; Slaughter Co. v. Eller (Tex.Civ.App.) 196 S.W. 704; Briant v. Carl-Lee Bros.,158 Ark. 62, 249 S.W. 577.

As we view the record, appellant failed to make such proof. The allegation in his pleadings was that by the terms of the contract between him and Smith, made August 25, 1919, he was to pay only $3,000 for the land, and that $150 in excess of that amount "was carried (quoting) in said note as interest or for the forbearance of the payment of said $3,000 until the 15th day of October, 1919." The interest stipulated for in the note was at the rate of 10 per cent. per annum. Therefore the note was not usurious on its face. Articles 4979, 4980, Vernon's Statutes. Hence to establish his contention appellant must have adduced other evidence than the note itself. Slaughter Co. v. Eller (Tex.Civ.App.)196 S.W. 704; Bank v. Waggener, 9 Pet. 378, 9 L. Ed. 163; 27 R.C.L. 268. He proved no more than that he was to pay only $3,000 for the land. He did not prove that the $150 in excess of that amount in the note was intended to be interest on the $3,000 from the date of the note to October 15, 1919, as he alleged. The testimony of Smith and appellant himself (and there was none other) was to the contrary of that allegation. Smith testified that Smiley represented him in selling the land to appellant, and that:

"Smiley (quoting) was to get $150 commission for making the deal for me."

Smith testified further that he did not know anything about the $150 being added to the $3,000 when the note was made, and that only $3,000 was paid to him on account of the note. He testified further that he did not pay Smiley the $150 the latter was entitled to for selling the land. Appellant, testifying as a witness, said the $150 "was for Mr. Smiley," and that he paid the amount to Smiley. If the testimony referred to did not establish, as a matter of law, that the $150 excess over $3,000, included in the note, was not intended to be interest, it certainly was sufficient to support the finding involved in the judgment that it was not so intended. If it was not, then the contract was not usurious. Slaughter v. Eller (Tex.Civ.App.) 196 S.W. 704; Bank v. Waggener, 9 Pet. 378, 9 L. Ed. 163; Henry v. Sansom, 2 Tex. Civ. App. 150, 21 S.W. 69; Williams v. Bryan, 68 Tex. 593, 5 S.W. 401; Carden v. Short (Tex.Civ.App.) 31 S.W. 246; Shaw v. Lumpkin (Tex.Civ.App.) 241 S.W. 220; Shropshire v. Commerce Farm Credit Co. (Tex.Civ.App.) 266 S.W. 612, Id. (Tex.Com.App.) 280 S.W. 181.

We think the other contention presented, to wit, that the trial court erred when he taxed the costs of the suit against appellant, should be sustained. Appellant was the "successful party," within the meaning of the statute (art. 2056, R.S. 1925), and therefore was entitled to recover the costs of this suit. But we also think the judgment is fundamentally erroneous so far as it was in appellant's favor for the costs incurred in said cause No. A-315. The judgment will be so reformed here as to deny appellant a recovery of the costs in said cause No. A-315, and as to allow him, instead of Mrs. Tiller, the costs of this suit, including the costs of this appeal, and as so reformed the judgment will be affirmed.