Shaw v. Lumpkin

The assignment attacking as erroneous the action of the court in sustaining the exception to part of Shaw's answer, referred to in the statement above, is overruled. The allegations did not show that the consideration for the $499.49 note had failed in part. The effect of overruling the exception would have been to determine, erroneously, that Lumpkin had a right, without pleading fraud, accident or mistake, to contradict and vary the terms of a written instrument. Cattle Co. v. Carroll, 63 Tex. 48; Saunders v. Brock, 30 Tex. 421; Newton v. Newton,77 Tex. 508, 14 S.W. 157; Leavell v. Seale (Tex. Civ. App.) 45 S.W. 171; Cameron v. Williams (Tex. Civ. App.) 203 S.W. 928.

Neither the parol contract, by which Shaw bound himself to pay 10 per cent. interest on the amount of the purchases he made from the times, respectively, he made them, nor the contracts, evidenced by the notes, binding Shaw to pay interest on the amounts thereof at the rate of 10 per cent., were unlawful. The contracts denounced by the Constitution (section 11, art. 16) and statute (Vernon's Statutes, art. 4980) are contracts for a greater rate of interest than 10 per cent. Testifying as a witness at the trial, Lumpkin admitted he discovered, when Shaw filed the plea setting up usury in the notes, that the interest he charged on the $241.99 and $459.49 accounts exceeded 10 per cent. It was on this testimony, it seems, that appellant predicated his contention that the $260.80 and $499.49 notes were usurious — the theory being as we understand it, that the notes were usurious because the amounts thereof included the interest in excess of 10 per cent., charged on the accounts. This view ignores the fact that the unlawful interest charged on the accounts was not charged in conformity to, but in violation of, the contract, and, evidently, because of fraud or mistake. Trust Co. v. Dillard, 7 Ind. T. 501, 104 S.W. 814. Shaw might, on proper pleading and proof, have had the notes so reformed as to show the true amount of the accounts and the interest he agreed to pay thereon, and in that way have confined the recovery against him to the amount of the notes and 10 per cent. interest thereon remaining after the excess interest charged on the accounts was deducted.

There is no error in the judgment, and it is affirmed.