Felton, Chief Judge.
This is an action to recover usury paid on an obligation within twelve months before the institution of the action. Code § 57-115. The basis and theory of the action is that, treating all of the dealings alleged between the parties as one transaction, the plaintiff paid the alleged amount of usury to the defendant within one year prior to the filing of the action. Assuming that the petition otherwise shows all the elements necessaiy to a cause of action of this kind, unless the petition, construed against the plaintiff on demurrer, shows that the amount sought to be recovered, or a part it, was paid 'as usury to the defendant, within one year prior to the filing *320of the action, no cause of action is set out. This is the only question necessary for decision in this case. The answer to the question depends on the proper construction of the petition as amended. The trial judge ruled that a cause of action was stated and based his conclusion on exhibits to the petition which showed that every note signed by the plaintiff was marked “Paid” on July 23, 1956. The suit was filed July 31, 1956. If the petition and exhibits showed no more than that the notes were paid on July 23, 1956, the trial court would have been prima facie correct in his ruling. However, another exhibit attached to and made a part of the petition showed that interest payments were made on the notes monthly from May 31, 1954,- through May 23, 1956. On demurrer the fact of these monthly payments is treated as the truth and their payment is consistent with the fact that the entire notes were stamped paid at a later date. The exhibits show that the principal and interest on the notes of March 16, 1954, and August 5, 1954, had been paid for more than one year prior to the filing of the petition, as well as other interest on another obligation. As against the date an entire note is paid the allegation that interest payments on the note were made monthly must control in the construction of this petition. Since the petition does not allege that the payments made on the obligations treated as one transaction within one year prior to the filing of the suit were usurious, the petition fails to set forth a cause of action against the general demurrer, and the court erred in overruling the general demurrer. The various special demurrers attacking the various allegations of the petition which showed an effort to collect payments made more than one year prior to the filing of the suit were also improperly overruled. The other special demurrers were properly overruled. ■
Nothing herein ruled shall be construed to mean that the plaintiff in the trial court, defendant in error here, may not by amendment to the petition in this case show by appropriate allegations that he is entitled to recover some sum as usurious interest paid within one year prior to the filing of this action.
The court erred in overruling the defendant’s general demurrer and the special demurrers specially ruled on. The court did not err in overruling the other special demurrers.
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Judgment affirmed in part and reversed in part.
Nichols, J., concurs. Quillian, J., concurs specially.