Alston v. Greene , 43 S.W.2d 478 ( 1931 )

On Rehearing.

Both parties have filed motions for rehearing, and each has called attention to a question not specifically discussed in our original opinion. The appellant contends that we should have included in the amount actually owing by appellee to him an item of $338.11, which he claims was due him on an open account and became a part of the principal of the note which we held' to be usurious. In response to appellant’s contention, we here state our reason for not including said item in our calculation.

Appellant requested the trial court to find that, at the time of the settlement on October 5, 1928, appellee owed him $338.11 on a personal account, and the trial court expressly refused to make such finding. The evidence justified the court in so refusing, and it would not, therefore, be proper for us to give appellant credit for this amount in calculating the actual indebtedness due him by appellee.

Appellee insists that we erred in our calculation wherein appellant was given the benefit of the item of $296.10, as interest owing from August 1, 1928, to October 5, 1928, on the balance due on the two original notes of $18,000 and $1,000. Since this item was interest, and since we held that the contract of October 5th was usurious, it is insisted that said contract was void, as to all interest, including this item. We cannot agree to this view of the record. The amount of interest accruing on the original indebtedness between August 1 and October 5, 1928, was lawful interest upon a lawful contract. The only contract tainted with usury was that of October 5, 1928, and the fact that the lawful interest theretofore owing became a part of the unlawful contract would not have the effect of making void such lawful interest theretofore accrued. It became a part of the valid principal of the new contract and never became a part of the unlawful interest charged thereunder.

Both motions have been duly considered by the court and are overruled.