Wellfare v. Realty Trust Co.

This is a usury case, and the charge is based upon acceleration clauses in various notes and deeds of trust, and there is no contention that in the transaction the interest actually provided for in the absence of acceleration would constitute usury. In fact, no contention is made that actual usury was ever collected under the loan contracts.

The plaintiffs, Mrs. E. K. Wellfare and others, instituted this suit against the Realty Trust Company, a corporation, and others, alleging that they had theretofore entered into a usurious contract with W. A. Waldrop, and that later the same loan was taken up and extended by the Realty Trust Company by contract of like nature. They further allege that usurious interest payments had been made on these loans, and they sought to have application of such interest payments made to the unpaid balance of the principal, etc. The defendants, some of them assignees of the notes, answered by general denial, plea of estoppel, etc. The trial was before the court without a jury, and resulted in a judgment in favor of the defendants and against the charges of usury.

As stated, two loans are involved. The first will be herein designated as the Waldrop loan, and the second as the Realty Trust Company loan. The first loan contract was executed by Mrs. E. K. Wellfare and others to W. A. Waldrop April 10, 1925. It is evidenced by three principal notes, one for $130, one for $150, and the third for $2,900, each dated April 10, 1925, maturing three, four, and five years, respectively, from date, at the rate of 6 1/2 per cent. per annum, payable semiannually, etc. These principal notes are referred to in the deed of trust as the bond. As part of the above transaction, an additional interest note, at the rate of 1 1/2 per cent. per annum on the principal notes, and amounting to $232.75, was also executed by appellants to Waldrop. This note was payable as follows:

$23.85 on October 10, 1925 $23.85 on April 10, 1926

$23.85 on October 10, 1926 $23.85 on April 10, 1927

$23.85 on October 10, 1927 $23.85 on April 10, 1928

$22.87 1/2 on October 10, 1928 $22.87 1/2 on April 10, 1929

$21.75 on October 10, 1929 $21.75 on April 10, 1930

— with interest at the rate of 10 per cent. per annum from date of maturity, etc.

A first deed of trust executed by the Wellfares against lot 10, in block 6, Vickery place, an addition to the city of Dallas, Dallas county, Texas, secured the three principal notes. A second deed of trust in like form, covering the same property, secured the 1 1/2 per cent. interest or commission note of $232.35.

It is the contention of the appellants that the above notes and deeds of trust constitute a usurious transaction because it was, under the contract, within the power of Waldrop, or the holder and owner of the notes, to declare all the indebtedness immediately due, both principal and interest to become due, had there been a default at maturity in the payment of either; that as mortgagee and payee in said notes he could have collected on said notes for a period of one year the full amount of principal in the sum of $3,180, together with an additional sum of $1,130 as interest thereon, which is approximately 35 per cent. on the principal indebtedness. More broadly stated, the contention is that, if appellants had defaulted in the payment of either principal or interest at any time when due during the life of the contract, it was in the power of the mortgagee, Waldrop, to declare the principal note and all interest provided for, therein including the full amount of $232.35 interest notes due and payable.

The three principal notes contain an acceleration clause as follows:

"Failure to pay any portion of principal or interest when due, or failure to comply with or perform any of the provisions, conditions or covenants contained in the hereinafter mentioned instruments of writing, shall, at the option of the holder hereof mature the entire indebtedness secured by the hereinafter mentioned lien."

The first and second deeds of trust executed contemporaneously with said notes, and therefore being a part of the loan transaction, contained the following provision:

"Now, should the parties of the first part make prompt payment of said indebtedness, both principal and interest, as the same shall become due and payable, then this conveyance shall become null and void. * * * But should the parties of the first part make default in the punctual payment of said indebtedness, or any part thereof, principal or interest, as the same shall become due and payable * * * or fail to keep said improvements in good condition and repair * * * or fail to pay, as the same shall become due and payable all taxes that shall be chargeable to or assessed against this mortgage and the note or notes hereby secured, which tax payments on this mortgage and the note or notes hereby secured, together with interest payments, are not to exceed 10 per cent. per annum on theprincipal amount of the indebtedness hereby secured, then, in any suchcase, the whole amount of such indebtedness hereby secured, remainingunpaid shall, at the option of the party of the third part, or otherholder thereof, immediately mature and become payable and it shall thereupon, or at any time thereafter, the same or any part thereof remaining unpaid, be the duty of said party of the second part herein, and of his successor or substitute as hereinafter provided, on request of said party of the third part, or other holder of the indebtedness hereby secured, or any part thereof * * * to enforce this trust; * * * and out of the money arising from such sale the trustee acting shall pay, first, all the expenses of advertising, sale and conveyances, including a commission of five per cent. to himself, and then, to said party of the third part, or other holder thereof, the full amount of principal, interest and attorney's fees due and unpaid on said indebtedness as hereinbefore set forth, rendering the balance of the purchase money, if any, to said parties of the first part, their heirs or assigns. * * *

"It is further expressly understood and agreed that the note herein and hereby secured is given to secure part of the agreed interest to accrue on three notes of even date herewith in the aggregate sum of $3,180, executed by Mrs. E. K. Wellfare et vir, payable to the order of W. A. Waldrop, and fully described in a deed of trust of even date herewith to William T. Sargeant, Trustee."

Under the terms of the foregoing instruments, evidencing the loan contract, is the transaction usurious in view of the maturity acceleration clauses set forth? After a careful analysis of the instruments evidencing this loan, and especially the provisions set out, we are of the opinion that a proper construction of the language of the contract does not create a contingency therein empowering Waldrop, or the holder of said notes, to exact usury, or a higher rate of interest than 10 per cent. per annum on the loan. The provision carrying the acceleration maturity option in said instruments and the basis for its operation have, either in form or substance, often been before the appellate courts of this state. The legal effect and construction of such have become well established, and further discussion of same is deemed unnecessary. As we interpret the decisions, such provision in a note, or loan contract, properly construed, does not mean that the holder of a note may declare not only the principal, but the unearned coupons and interest notes as well, due and payable, in the event of default, prior to final maturity, thus enabling him to exact, for the time, interest greater than 10 per cent. per annum. Unearned interest would not come within the proper meaning of such stipulated acceleration clauses. Lincoln Nat. Life Ins. Co. v. Anderson (Tex.Com.App.) 80 S.W.2d 294; Id. (Tex.Com.App.) 81 S.W.2d 1112; Dugan v. Lewis, 79 Tex. 246, 14 S.W. 1024,12 L.R.A. 93, 23 Am. St. Rep. 332; Walker v. Temple Trust Co. (Tex.Com.App.) 80 S.W.2d 935; Reynolds Mort. Co. v. Thomas (Tex.Com.App.)81 S.W.2d 52; Braniff Inv. Co. v. Robertson (Tex.Com.App.) 81 S.W.2d 45; Marble Sav. Bank v. Davis (Tex.Com.App.) 80 S.W.2d 298; Odell v. Commerce Farm Credit Co. (Tex.Com.App.) 80 S.W.2d 295; Burnette v. Realty Trust Co. (Tex.Civ.App.) 74 S.W.2d 536 (writ ref.); Dunlap v. Voter (Tex.Civ.App.) 72 S.W.2d 1109 (writ ref.); Bankers' Life Co. v. Miller (Tex.Civ.App.) 68 S.W.2d 574 (writ ref.); Spiller v. Bell (Tex.Civ.App.)55 S.W.2d 634; Ætna Life Ins. Co. v. Foster (Tex.Civ.App.)66 S.W.2d 428; American Trust Co. v. Orson (Tex.Civ.App.) 65 S.W.2d 779; N.W. Nat. Life Ins. Co. v. Whittington (Tex.Civ.App.) 81 S.W.2d 173; Clement v. Scott (Tex.Civ.App.) 60 S.W.2d 258; Travelers Ins. Co. v. Greer (Tex.Civ.App.) 83 S.W.2d 1020; Moore v. Cameron, 93 N.C. 51. Upon the authority above, the appellants' proposition under consideration is overruled.

The expressions "whole of the indebtedness" and "the entire indebtedness," as used in the principal notes (bond), deeds of trust, etc., are, under the circumstances of this case, taken in connection with the acceleration clause, fairly susceptible of the interpretation that it was the intention of the parties to give the owner or holder of the notes the right to recall the loan with interest to the date of maturity only. If such meaning can be attributed to the terms of the contract, such an interpretation must be followed. It is a rule of law well recognized in this state that in questions of usury the matter of intention of the parties is controlling. If there be an intention to charge usury, no matter how the transaction may be veiled or disguised, the courts will look through the form to the substance of the transaction and condemn the contract as usurious. Equally well settled is the rule of construction that, if the transaction is such as to render the intention of the parties doubtful, the courts will adopt the construction which attributes to them a legal, rather than an unlawful, intention. Galveston H. Inv. Co. v. Grymes, 94 Tex. 609, 63 S.W. 860, 64 S.W. 778; Bankers' Life Co. v. Miller, supra.

The rule of construction in such cases is well stated in 66 C. J. § 61, p. 172: "If two reasonable constructions are possible, by one of which the contract will be legal and valid, while by the other it will be usurious and unlawful, the courts will always adopt the former. In short, the general rule of interpretation and construction of such contracts may be said to be that the contract is not usurious when it may be explained upon any other hypothesis."

This rule was applied by our Supreme Court in an able opinion by Commissioner German in Walker v. Temple Trust Co., 80 S.W.2d 935, 937.

A portion of the opinion in the Walker Case, pertinent in the construction of the contract before us, and relevant at this point on that and another phase of this case, is as follows:

"As related to the foregoing principle of construction, we may say that as unearned interest is no part of an indebtedness at the time of prematurity under an option by the lender, it is therefore uncollectible because of lack of consideration, and the presumption is that it was not to be collectible in the event of acceleration of undue interest installments; therefore, the rule should be, as clearly recognized in motion for rehearing in the Shropshire Case (Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.2d 282, 39 S.W.2d 11,84 A. L. R. 1269), that unless the contract by its express and positive terms evidences an intention which requires a construction that unearned interest was to be collected in all events, the court will give it the construction that the parties intended that the unearned interest should not be collected."

The loan contracts here challenged fall far short of containing the "express and positive terms" evidencing an intention to collect unearned interest "in all events." To the contrary, they are susceptible to the construction that the parties contemplated a purpose in harmony with obedience to law.

Were we in doubt about the proper construction of the contract, we would therefore necessarily under the facts of this case and the authorities cited reach the same conclusion in the disposition of this appeal.

The loan contract carries other and convincing evidence that the respective parties to the transaction neither intended to collect nor pay usurious or unearned interest. This conclusion is based on a consideration of the contract as a whole, which we are authorized to do under the authorities. Reynolds Mort. Co. v. Thomas, supra. Attention is therefore directed to a portion of the acceleration clauses contained in the second deed of trust, stipulating for the right in certain events to mature the obligation. That clause provides that on contingencies "the whole amount of said indebtedness hereby secured remaining unpaid, shall at the option of the party of the third part * * * immediately mature and become payable, * * *" and the provision as to the distribution of the proceeds of a sale under the deed of trust, after providing for payment of costs, fees, and other items, provides that payment of the balance be made "to said party of the third part, or holder thereof, the full amount of principal, interest * * * due and unpaid." These excerpts manifest an intention to exclude the right of the holder of the notes to collect unearned interest (Marble Sav. Bank v. Davis, supra), and we think such purpose is emphasized in a further provision of the deed of trust above set out stipulating that "* * * tax payments on this mortgage and the note or notes hereby secured together with interest payments are not toexceed 10 per cent per annum on the principal amount of the indebtedness hereby secured. * * *" (Italics ours.) Burnette v. Realty Trust Co. (Tex.Civ.App.) 74 S.W.2d 536 (writ ref.).

So much for the Waldrop loan. We pass to a consideration of the Realty Trust Company loan, by which that company, upon the application of appellants, Mrs. E. K. Wellfare and others, took up the Waldrop loan and extended, in part, the original obligation. This loan was made June 5, 1929. It was evidenced by four principal notes (designated the bond) as follows: Note No. 1 for $250, due July 1, 1931; note No. 2, for $250, due July 1, 1932; note No. 3 for $250, due July 1, 1933; and note No. 4 in the sum of $2,500, due July 1, 1934. These notes bore interest at the rate of 6 per cent. per annum, payable semiannually, and carried acceleration maturity clauses, presently to be considered. The interest on these notes was evidenced by 28 coupons of even date with said notes and attached thereto. These interest coupons carried no acceleration clause, but bore interest at the rate of 10 per cent. per annum from maturity. As part of the above transaction, the appellants executed a series of ten notes, aggregating $149.75, which represented a part of the interest at the rate of 1 per cent. per annum on the $3,250 loan. These notes were payable as follows:

$18.50 on Jan. 1, 1930 $16.25 on July 1, 1930 $16.25 on Jan. 1, 1931 $16.25 on July 1, 1931 $15.00 on Jan. 1, 1932 $15.00 on July 1, 1932 $13.75 on Jan. 1, 1933 $13.75 on July 1, 1933 $12.50 on Jan. 1, 1934 $12.50 on July 1, 1934

These interest notes bore interest from maturity at the rate of 10 per cent. per annum, and did not contain any acceleration clause.

With respect to this loan, it is the appellants' contention that, in view of the rights of acceleration stipulated for therein, the holder and owner of the notes and lien could, upon the exercise of the option granted, under certain contingencies, mature the principal of said notes, together with an additional sum of $1,125, as interest, the rate thereof being in excess of 34 per cent. per annum on the principal indebtedness, etc.; that such would be the exaction of usurious interest for the use, etc., of the money during a term or year in which appellants might so default, etc.

The four principal notes above set out (known as the bond) contained the following acceleration clause:

(1) "If default be made in the payment of either principal or interest when same becomes due and payable, then all of said principal and interest shall at the option of the legal holder or holders hereof, become at once due and payable without notice."

(2) The first deed of trust securing the four principal notes and attached coupons contains this provision:

(a) "Now, therefore, if default shall be made * * * the trustee, or his successor, may sell said property * * * and shall receive the proceeds of said sale, and out of the same shall pay: First, all charges * * * including a fee * * * to trustee; second, the debt and all sums of money due, or to become due hereunder with interest as agreed * * *"

(b) "It is specially agreed, that if any tax * * * shall be imposed within the State of Texas upon said bond, or upon the interest of said trustee * * * or of any holder of said bond in said premises, or upon the lien of this instrument or said lien or interest shall be declared to be real estate, and shall * * * be taxed or assessed, * * * then the grantor, heirs, legal representatives * * * shall at once discharge said tax * * * provided that if the payment of the rate of interest providedfor in said bond and the taxes and assessments referred to in this clauseshall be construed by the court finally having jurisdiction thereof asrequiring payment of said loan of money represented by said bond, ofinterest in excess of 10 per cent per annum, the holder of said bondshall pay such excess." (Italics ours.)

(c) "And it is further specially agreed that if default be made in the payment of said bond or any one of them, or any interest thereon, or in the performance of any of the covenants or agreements herein contained * * * then, at the option of the legal holder of said bond the whole indebtedness secured hereby shall at once become due without notice and may be collected by suit or proceedings hereunder."

(3) The second deed of trust securing the additional interest notes at the rate of 1 per cent. per annum contained the following accelerating option:

"* * * But if default shall be made in the payment of any part of said indebtedness, or of any of said notes, or in the performance of any covenant * * * herein, or of said first deed of trust, then in any such event the trustee shall at the request of the holder of any past due and unpaid note, * * * secured hereby, sell the property hereby conveyed subject to the lien of said first deed of trust and subject also to the lien of this instrument for unmatured notes * * * hereby secured, to the highest bidder for cash, as provided in said first deed of trust, or, if the amount of interest paid and accrued on said first deed of trust bond plus the amount of said note shall not aggregate more than 10 per cent. per annum on said bond for the time it shall have run, at the option of the legal owner and holder of said note the whole amount thereof shall at once become due and payable, and the trustee may sell said premises as herein set forth * * * and deliver to the purchaser of said lands * * * warranty deed * * * therefor subject, however, to the lien of said first deed of trust, and to the lien of this instrument for unmatured notes * * * of the indebtedness hereby secured and shall receive the proceeds of such sale which he shall pay and disburse as follows, to-wit: (1) * * * costs and expenses of executing this trust * * * (2) he shall pay such portion of the debt and other sums hereby secured as shall have become due and payable at the time of instituting such proceeding, * * *" etc.

From the foregoing statement of the nature and contents of the different notes and deeds of trust involved in the Realty Trust Company loan, it is apparent that that transaction does not materially differ in form or legal effect from the instruments evidencing the Waldrop loan considered in the first part of this opinion. Evidently the parties to the Realty loan intended that the same construction should be placed upon the acceleration clauses in the deeds of trust as they intended should be placed on like provisions in the notes. So interpreting the contract, the same rules of law and the authorities relied on in the first part of this opinion are applicable and controlling here. Certainly an application to the terms of the loan contract (either the Waldrop or the Realty Trust Company loan) of the rules of construction for the ascertainment of the intention of the parties leads at once to the conclusion that the contract is susceptible of a meaning in harmony with a lawful purpose and intent upon the part of the makers. Such interpretation excludes the right to collect unearned interest. Hence we are of the opinion that the instruments evidencing the Realty Trust Company loan and the provisions therein specially pointed out do not create a usurious contract, and the appellants' assignments attacking the judgment of the trial court on this point are overruled.

For another and all-sufficient reason, the judgment of the trial court should be affirmed. A loan contract in terms and substance corresponding to that here made by the appellants with the Realty Trust Company was taken for judicial construction before the Dallas Court of Civil Appeals in the case of Burnette v. Realty Trust Co., 74 S.W.2d 536, and there challenged under contentions that it stipulated for usurious interest. That court held the loan contract free from usury, and the Supreme Court refused a writ of error. We follow that authority. It was recently cited with approval by the Supreme Court in an opinion by Judge Smedley in Odell v. Commerce Farm Credit Co. (Tex.Com.App.) 80 S.W.2d 295.

Further, the loan contract in the instant case also contains the same provision which in the Burnette Case was held to evidence the intention of the parties to so contract as not to authorize the collection of interest in excess of 10 per cent. per annum. That like provision is set out in paragraph (b) above, and will not here be repeated. See Lincoln Nat. Life Ins. Co. v. Anderson, supra.

The appellants rely upon the opinion in the Shropshire Case and others based thereon for reversal of the trial court's judgment. After a careful consideration of that opinion, we conclude nothing is to be found therein that would lead to a reversal of the judgment in this case.

The contract in the Shropshire Case would seem to be usurious upon the ground that the creditor, under the terms of the loan, collected 12 per cent. interest per annum for the first two years of the loan, and was insisting upon collecting the same rate for the three following years. In other words, the contract provided that in case of certain defaults Shropshire was obligated upon the option of the lender to repay the principal with interest in excess of 10 per cent. per annum and the unpaid commission notes as well.

There can be no question about the correct result having been reached in that case. In the disposition of that appeal, certain fundamental principles common to usury cases were discussed which have application to the instant case and clearly distinguish it from the authorities relied upon by the appellant. For instance, in the Shropshire opinion,120 Tex. 415, 39 S.W.2d 11, 13 [2 and 3], when the opinion in Dugan v. Lewis, supra, was being stressed before the Supreme Court on the issues presented in the motion for rehearing, it is stated that Judge Phillips used, in part, this language in referring to the loan contract in the Dugan Case: "Had the stipulation made it clear that upon an acceleration of the maturity, the whole interest was to be collectible without reference to whether it had been earned, a different question would have been before the court."

Our able Supreme Court responded to this point as follows: "In our opinion, this latter question is the one we have determined in this case; for we have a clear stipulation that, upon acceleration of the maturity,all of the interest secured by the second lien deed of trust, despitethe fact that much of it is unearned, shall be due and payable." (Italics ours.)

Greater emphasis is given to this distinguishing point in the immediately preceding portion of that opinion which is as follows: "If the contract between these parties contained no language other than that, if default was made in the payment of any installment of interest, the principal of the note, ``with interest,' should be collectible at the creditor's option, then such language would be fairly susceptible of the meaning that unearned interest was to be abated. So in Dugan v. Lewis,79 Tex. [246], 249-254, 14 S.W. 1024, 12 L.R.A. 93, 23 Am. St. Rep. 332, the language of the deed of trust, coupled with the explicit words of the note, made the contract susceptible of the interpretation that unearned interest was not collectible. But here the parties have used clear andpositive language to negative the abatement of any portion of the unearnedinterest secured by the second lien deed of trust. The second lien deed of trust secured five interest notes for $252 each. * * * The language of this deed of trust, which we are asked to adjudge fairly susceptible of authorizing abatement of some of the second lien notes representing unearned interest, stipulates: ``If the notes secured hereby and each of them are not paid promptly when due * * * then all of said notes hereby secured shall become due and payable at the election of the holder. * * *'" (Italics ours.)

Following this, the eminent judge writing that opinion used this language: "The English language could declare no plainer that what the holder of the notes was to receive, at his option, if any installment interest note secured by the second lien deed of trust was not paid at maturity, was at least: First, all of the unpaid notes secured by the second lien deed of trust, and not merely a portion thereof less than all; and, second, the unpaid portion of the coupons for at least the earned interest at 6 per cent. per annum." (Italics ours.)

Further analyzing the contract in the Shropshire Case, the court said: "Simply stated, the contract we have declared usurious is one which certainly undertakes to grant the creditor an option, contingent alone on the debtor's default, to collect interest at the rate of 12 per cent. per annum for the first and second years of a loan, and at the rate of 24 per cent. per annum for the third year, which was the final year, at the creditor's election. * * * Our conclusion is that the words of this contract are so clear that the parties must have understood them as meaning that, upon the debtor's default to pay a second lien installment note, the debtor was to become liable, at the creditor's option, for the payment of the principal of this loan, with compensation for detention thereof at a rate far in excess of 10 per cent. per annum. Abatement ofunearned interest embodied in the second lien notes is not only notsanctioned, but is forbidden by the terms of the contract." (Italics ours.)

It is too clear for argument that all of the unearned interest notes were made collectible by the terms of the contract there under consideration upon the exercise of the rights of acceleration. A fair consideration of the opinion in the Shropshire Case inevitably leads to the conclusion that it carries within itself a most explicit statement of the facts and legal principles which distinguish it, and later opinions based thereon, from the instant case and numerous opinions upon the question of usury recently released by our Supreme Court and relied upon herein. The above language of our Supreme Court and its analysis of the Shropshire loan contract may well and fairly be considered as making that opinion an authority, in the respects pointed out, for the disposition we make of this appeal.

The cases of Deming Inv. Co. v. Giddens, 120 Tex. 9, 30 S.W.2d 287, and Bothwell v. F. M. State Bank Trust Co., 120 Tex. 1,30 S.W.2d 289, 76 A. L. R. 1480, deal with contracts of precisely the same nature as that involved in the Shropshire Case. What was said by the Supreme Court of the Shropshire Case may also be said of the contracts in these cases, viz., abatement of unearned interest was not only not sanctioned, but was forbidden by the terms of the contract.

Commerce Trust Co. v. Best (Tex.Com.App.) 80 S.W.2d 942, 943, 944, followed the Shropshire Case and condemned the contract under consideration as usurious, but in doing so pointed out that a provision of the loan contract evidenced by the second deed of trust providing for the exercise of the right of acceleration of the notes stipulated that, upon default in the payment of any one of them, "then all of said notes * * * shall become due and payable at the election of the holder," etc. (Italics ours.)

Naturally, such a provision permitted the reduction of the original term of the loan and the collection of interest in excess of the lawful rate. The conclusions in the Best Case are logical, but not controlling here.

The opinion in Manning v. Christian (Tex.Com.App.) 81 S.W.2d 54, 55, prepared by the same able commissioner who wrote the opinion in Lincoln Nat. Life Ins. Co. v. Anderson, disposed of a case in which a contract was condemned as usurious, specifically stating that: "The precise and positive wording of the notes themselves that the holder might mature all of said notes, discloses an intention to mature them and make them payable in full, even though they represented only unearned interest." (Italics ours.) Certainly, in such a case the Shropshire Case would be controlling.

In the Brashear Case (Dallas Trust Sav. Bank v. Brashear) (Tex.Civ.App.) 39 S.W.2d 148; Id. (Tex.Com.App.) 65 S.W.2d 288, the loan contract was held usurious. Apparently, the holding was based upon the terms of the loan contract which "provided for acceleration ofmaturity for all the notes in case of default in payment of any one ofthem." (Italics ours.) 39 S.W.2d 148, 150. Further, interest in excess of 10 per cent. per annum was in fact collected for the first year on that loan.

In Leach v. Reserve Realty Co. (Tex.Civ.App.) 70 S.W.2d 273, the loan contract provided that in case of default "all of the monthly payments * * * shall become * * * due." It specifically authorized the collection of unearned interest.

Dodson v. Peck (Tex.Civ.App.) 75 S.W.2d 461, and Temple Trust Co. v. Stobaugh (Tex.Civ.App.) 59 S.W.2d 916, 917, were cases in which a bonus was exacted and incorporated in the face of the note as principal advanced.

We shall not lengthen this opinion by a discussion of the numerous usury cases, many of recent date. After a careful study of them, we reach the conclusion that as between the latter and prior decisions there is no discord worthy of note, and that the fundamental principles and rules of law applicable to usury cases have in general been applied to the different states of fact with consistency and due appreciation.

Finding that neither the Waldrop nor the Realty Trust Company loan stipulated for usury, other questions become immaterial. For the reasons assigned, the judgment of the trial court is affirmed.