Noble v. First State Bank of Bishop ( 1934 )

I am of the opinion that plaintiff in error's motion for a rehearing should be granted, and I hereby dissent to the order overruling the same.

I think the original opinion is incorrect wherein it holds that the $33 interest was paid on January 6, 1928, and not on August 11, 1928, and that therefore a suit to recover double the amount of such usurious interest was barred by the two-year statute of limitation.

It is true that there was an exchange of a check, a deposit slip, and a note at the time this loan was made, but, when all matter of form and simulated transactions are brushed aside, we have the real facts in the case clearly presented: On January 6, 1930, plaintiff in error, H. B. Noble, borrowed $330 from defendant in error, First State Bank of Bishop, for which Noble signed a note due in eight months for the sum of $363, which included the $330 borrowed and the $33 interest which Noble had agreed to pay for the use of the money. On August 11, 1930, just before maturity, Noble paid this note in full, and for the first time paid to the bank the $33 usurious interest. He brought his suit within the two-year period after August 11, 1930, so that same was not barred by the statute of limitation. In my opinion, Noble should recover judgment in the sum of $66, which is twice the amount of the usurious interest actually paid by him on August 11, 1930. Gunter v. Merchant, 213 S.W. 604 (Tex.Com.App.); Simpson v. Grissom, 38 S.W.2d 1106 (Tex.Civ.App.); Alston v. Greene, 43 S.W.2d 478 (Tex.Civ.App.); Southern Industrial Corp. v. Bolton, 22 S.W.2d 495 (Tex.Civ.App.).

For the reasons above stated, I respectfully dissent from the majority opinion herein.