Hudmon v. Foster

¶1On Motion for Rehearing.

¶2On a former day of the present term of this court we reversed and remanded this cause, upon the ground that the judgment of. the trial court was not supported by the evidence. After mature consideration, we have concluded that we were in error in so holding.

¶3[4, 5] In the absence of material error in the conduct of a ease, an appellate court should affirm the judgment of the trial court, if it can do so upon any theory presented by the pleadings and sustained by the evidence. The pleadings and the evidence in the instant case presented the issue that the $5,000

¶4*265of stock in the Hudmon Oil Mill corporation was not given to appellees for the use of money loaned or advanced by them to appellant, but in payment for their services in finding a party or parties who would make such loan or advancement in whole or in part to appellant. The court found in favor of appellees, and, if that finding was correct, the proper judgment was entered. The finding of a court upon an issue of fact, .trying a case without a jury, is entitled to the same weight as the finding of a jury.

¶5[6] We were impressed with the idea that no sane man would pay $5,000 for services rendered in finding some one who would loan him $17,500 at 10 per cent, interest, and that the payment of this amount was really intended as interest on the loan. The written contract plainly specified that appellant agreed to give $5,000,of stock in the corporation to be organized by him, for services to be rendered by appellees in finding some person who would make him such loan, or a part thereof, and, if only a part, the remainder to be advanced by appellees. If such was the real agreement, a court will enforce the contract; no fraud, accident, or mistake being alleged or shown. Courts are not called upon to pass upon the wisdom of contracts made by parties, where the party complaining has not been overreached.

¶6As to $5,000 being an extravagant price for appellant to pay for finding some one who would loan him $17,500, it appears from the record that he might well have considered such a loan of great value to him. His mill property had been sold, and he could redeem the same for $17,500. If he could redeem this properts'', he could organize a corporation for $60,000, of which $30,000 would be cash for operating expenses, and the other $30,000 was to be issued to him, presumably for the mill property, which would cost him but $17,500. Such being the facts, if he could do no better, or thought that he could not, he might well have considered it good business to pay $5,000 of his $30,000 stock to some one who would find a party wh,o would make him the loan. At least, the trial court might have reasonably so found.

¶7We stated in our original opinion herein that the stock was worth par. No stock was being bought or sold at that time, except that subscribed by business men of Hamilton, who, the evidence shows, took said stock in order that they might secure competition in the oil mill business at that place. The trial court might well have found that the stock at the time of the transaction here under consideration was of uncertain value. '

¶8L7] Appellees insist that they did not loan or advance to appellant any money, but secured other parties to do so. If so, the amount paid them was not “for the use or detention of money” belonging to them, and was therefore not interest, and, if not interest, it could not be usury.

¶9The record is not clear as to the $7,500 obtained in Galveston, but the undisputed evidence shows that the $10,000 obtained from Shear was advanced or loaned by Shear as the result of the efforts of appellee Foster, and for this they were entitled to the $5,000 stock under the contract.

¶10[8] The trial court might well have found that the contract was a subterfuge to cover usurious interest, but, having found to the contrary, we have concluded that we ought not to set such finding aside as being wholly unsupported by the evidence.

¶11For the reasons stated, appellees’ motion is granted, our former judgment herein, reversing and remanding the cause, is set aside, and the judgment of the trial court is here affirmed.

¶12Motion granted, and judgment affirmed.