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7 Tex. Civ. App. 415

26 S.W 323

Tucker v. Coffin

Court of Appeals of Texas

Decided May 2, 1894

Court of Appeals of Texas · decided 1894-05-02

<p>1. Evidence of Usury Excluded.—It was not error to exclude the testimony of the attorney who prepared the papers, that the party loaning the money stated that the amount the borrower should actually receive was the sum of $ 100, less interest at the rate of 18 per cent per annum, which sum was retained, when the evidence of the defendant showed he borrowed $400, from which plaintiff deducted $40, and $10 were paid to the attorney for preparing the papers by agreement with defendant.</p> <p>2. Original Valid Contract Not Affected by Subsequent Usurious Contract. The original note being free from usury, a recovery could be had for the principal and interest at 12 per cent per annum. Sums subsequently paid in excess of 12 per cent interest should be credited on the note as made at the commencement of each contract year.</p>

Decided 1894-05-02

¶1As counsel suggests, our first conclusion of fact in this case is probably erroneous in stating that the firm of George Co. was composed of George Roller and Susan Tucker. The petition is misleading in this allegation, but by a closer reading of it, it would seem that it alleged that the former composed the firm. The finding one way or the other is not material. Our second conclusion of fact is correct, as from the testimony of George Roller himself, who stated that he got only $350, and the other $50 was retained by Coffin as interest, and that the $10 attorney's fee was by agreement paid by Coffin out of the $50 kept back at the time the note was executed.

¶2Appellants contend, that as Roller received only $350 it would be error to allow the contract rate of interest (12 per cent) from maturity on the entire $400. The transaction as it appears to us is virtually the same as if Roller had paid $40 interest to Coffin and $10 to the attorney. The original contract was not usurious in calling for $400, with 12 per cent from maturity.

¶3The motion is overruled.

¶4Motion overruled.

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