Rutherford v. Smith , 28 Tex. 322 ( 1866 )

Willie, J.

—The plaintiff in error seeks to reverse the judgment of the court below on the following grounds: 1st, because thp petition does not allege title to the note in plaintiff; 2d, because the contract sued on is usurious.

There is nothing in the first ground. The petition alleges that the payee transferred the note by indorsement to defendant in error for a valuable consideration, and this was sufficient to show title in the latter.

Nor can the second objection avail. It is said that the note is usurious, because, bearing date on the 6th of May, 1859, it draws interest from 1st of January, 1859, and the interest thereon at the date of the judgment amounted to more than twelve per cent, per annum. It was settled by this court, in the case of. Andrews v. Hoxie, 5 Tex., 190, that a promissory note is not usurious because it bears interest from a time anterior to its date. It is true, that it was shown in that case that the note was executed in consideration of a debt due at the time the interest commenced. If the contrary were true in the present case, the defendant in the court below should have established it by proof. The face of the note does not of itself establish this fact, as contended in argument. (Levy v. Hampton, 1 McCord, 145.) Defendant in error suggests delay, and the judgment must be affirmed with damages.

Judgment affirmed with damages.