*1 911 partial retain,.ei .payments be entitled event would her could be should sought credited, by be done, be liability ther of the contract as was virtue here the total J, liability. original original $10,- 9 C. of the set aside or of the indebtedness of 961; '47, p. 000, for, 97, 1210; law, 4 p. Tex. as matter § § 7 Jur. the credits would 24, p. 512; estimating Black on Rescission R. and 2 to be allowed § C. L. the amount Pomeroy, Eg. judgment. 621; Cook, Jur. Of the 5 Holland § Cancellation v. Tex. 10 App.) App.) Ry. (2) 2110; Hendricks, v. Jowers Harland v. Tex. 292. 946;W. Davis Oar v. It is believed that the trial court has cor- Wyatt n 710; Chambers v. 135 S. W. rectly ruled facts entered the May, Cearley S. W. proper judgment, and that such Quoting S. W. 106 Tex. 725. should affirmed. be. supra: 2 rescission “One § Black. transaction of a contract or other required or offer to make tender be en he would restoration of which is, retain, that either event to titled liability by party, other of the virtue INV. CO. et al. FIRES KINNEY-SHOTTS rescinded, if the should be contract No. itself, if rescission should under the contract El Paso. Court Civil Texas. be refused.” Pomeroy, 2110, supra: is a “Neither § obligated party he will that which to return July 2, 1931. retain, though a cancel- entitled to even be lation be decreed.” supra: seeks to “One who §J. -9 C. re- bound to is not rescind store that be entitled which he would retain.” event to pe thought, exception, it is governs application facts and culiar to the $1,000 appears, present cash As case. ag $7,000, city value of of the and gregating lots appellee, by $8,000, ap by both the and understood was intended pellant at the time a and the payment partial $10,000 indebted of the due. The amount had fallen by note, was, ness, without evidenced just owing dispute, debt. And as valid by intended indebtedness $10,000 dis parties be reduced at that partial pay by The balance of and more. ment so the remaining $2,000, on the note at due merely by paid time, mode another building way payment; is, by money. inof cash In such instead house there circumstances restoration or the offer partial payments unnecessary the to present prior the commencement of might action, conditions be es for such protection of the sential ultimately inserted could be rendered. could be partial payments so made into and should be taken account appellee.. of relief As for the award instance, if action for her cancellation fall, lien should she neverthe release of the partial payment entitled to less received for it been itself, virtue of transaction the. of what should have paid If, her the first instance. hand, were the other she entitled to have asked, the relief of cancellation

decreed *2 Company Shotts Wes-Tex said Investment maturity; Sales, long Auto Inc. its before Compa- Kinney-Shotts that said Investment ny, assign- purchase at the and time of the writing ment of said note in and instrument any subsequent thereto, at had and/or knowledge any no kind and/or character, infirmity, of defect and/or may Worth, appellant. which Wright, existed or in said note for have existed Fort of A.C. writing and the in instrument between Davis,.both and/or Dawson H. and E. Martin Jesse thereof; maker and holders the Green, Fort (Homer B. of Worth of Fort aforesaid, purchasing note, in so that said as said appellees. counsel), Worth, for of Kinney-Shotts Company Investment held the same free and clear of and from de- PELPHREY, C. J. prior parties fect of title or and free and judgment the appeal of is an clear of and from defects and defenses avail- Tex., county, county law of Tarrant at prior parties among able to themselves.” against nothing appellant in suit his take that copart- Company, Kinney-Shotts Investment Opinion. recover nership, to he was in which Appellant filed no motion for a new in trial penalty $240.94, col- as the sum of the trial court but filed three alleged have to usurious interest lection of error, substance, (1) in as That follows: upon note in and included been collected evidence; excluding in erred certain Sales, by appellant Auto Wes-Tex to executed Inc., (2) judg- rendering that the court in erred Kinney-Shotts assigned Invest- and to appellee; (3) ment for and that the court Company. ment refusing judgment erred in to his render in purchased 1928, appellant On October favor. These three carried are Sales, Inc., automo- Auto Wes-Tex from bile, appellant’s brief, forward in well October, execut- on the 24th and attacking findings others of the trial Sales, Auto the Wes-Tex ed and delivered to Inc., cipal court. prin- promissory note his certain being There filed no mótion for a new trial $812.90,payable installments. sum of findings assignments attacking and no these Wes-Tex of the same month the 26th court, they filed the trial cannot here assigned Inc., Kin- Sales, said note to Auto ney-Shotts considered. Henderson et Company valu- Investment & Finance Co. consideration. able 144, and authorities cited. Appellant paid note full Orr, In the recent case McDaniel Kinney-Shotts Company and Investment to S.W.(2d) 489, 30 held that the Commission of against Wes- both this suit then instituted charge usury ulti intent to Inc., Sales, Kinney-Shotts In- and Auto Tex penalty mate issue in a case pro- to recover the penalty Company recover the vestment vided for to collecting interest, and, usurious the court Statutes. Revised in article having Kinney-Shotts found here Invest appellant that dismissed as Prior to Wes-Tex the Company ment in had no notice of the Sales, before Inc. a trial Auto naturally note, cluded in the it that appel- follows court, judgment that was rendered charge it could have had no or col nothing, appealed. intent At and take lant it. lect appellant, request the trial court the findings law. of fact and conclusions of “yellow slip” sought The in by appellant found the execution properly first The court troduced in was excluded Inc., Sales, by appellant Wes-Tex Auto showing note absence note, setting been and part that out it of the recitals therein contained Kinney-Shotts Investment transferred Company While been admissi it have consideration, recit- purpose for a valuable showing ble for the in dence on that following “For ing note, value indorsement: included there was evi Kinney-Shotts pay or- Inv. Co. or court, and before the Auto on us. Holmes, yellow recourse Wes-Tex slip der with the recitals of the been would have By Sales, P. A. Inc. Treas.” The corroborative that evidence. having appellee finding court tice of following found had no no made: was also any usury Company the introduction Investment “That of the instrument had no purchaser effect on note is bona fide of said was and rendered, and, writing if there instrument and a holder in due and course any error, harmless, especially thereof; when said instru- note regular writing admitted that no usual and is ment in tice of its face; recitals. that said its note and endorsed, writing purchased by having any usury appellee' The trial court found that assigned Kinney- sold, to said had no notice of transferred included in its intent have been there could it, and, charge or collect to, excepted having will be affirmed. Affirmed. *3 Rehearing.

On Motion for opinion consid- refused to we former our not appellant’s er ap- not and did lower transcript. pear in the holding decision We based our Finance & Henderson et Co. App.) S.W.(2d) (Tex. aft but question we study o'f a more careful er such in error we were concluded Manufacturing & Lumber Gulf refusal. App.) (Tex. Civ. Newton App.) W. 279 S. v. Poteet Johnson Moody refused); (writ Bonham refused); App.) (writ W. 1020 W. S. v. Busbee Busbee p. 832. 3 Tex. Jur. question do not .[6] Those of the court that having been note. It be conceded that not such does included appear but and therefore on the face of the upon appellant bring home burden was the to them so of the fact discharged charged, and until he had penalty from burden he could recover the

them. opinion being of Still correct, rehearing over- motion is ruled.

MARYLAND CASUALTY CO. v. SMITH.

No. 10825. Appeals of of Civil Texas. Dallas. Court Dallas, Payne, Robertson, Robertson & appellant. June Chamberlain, Logan N. Green Green & Wade, Dallas, all -for

VAUGHAN, J. by appellee against was instituted This suit Compensation appellant under the Workmen’s (Rev. seq., Act of Texas St. art. 8306 et amended), an award of the to set aside Board, Industrial Accident appellant to recover compensation period ap- disability, expense pellee’s for’ presented No medical treatment. pleadings, no statement therefore May will reference thereto. jury 26,1930, was had without a rendered favor of