165 S.W.2d 709 | Tex. | 1942
delivered the opinion of the Court.
This is a. usury case. There is no dispute in the testimony of most of the material points in the case. The facts, as testified to by the defendant, B. B. Greever, are substantially as follows: In the year 1936 I. B. Persky was in financial difficul
An agent or a broker may lawfully charge a commission for his services in negotiating a loan with a third party, and such commission will not be taken into consideration in determinng whether or not the loan is usurious, where it is done in good faith, and not as a mere cloak to avoid the usury law. But, in order to be valid it must appear that the loan was ultimately made with or passed on to a third party, and that the extra charge was made in good faith for so negotiating the loan. Such a charge may not be made where the party charging the commission is merely lending his own money. 42 Tex. Jur. 933; Trinity Fire Ins. Co. v. Kerrville Hotel Co., 129 Texas 310, 103 S. W. (2d) 121, 110 A. L. R. 442; Deming Inv. Co. v. Giddens (Tex. Civ. App.), 41 S. W. (2d) 260 (writ dismissed) ; Deming Inv. Co. v. Clark (Tex. Civ. App.), 89 S. W. (2d) 853; Adleson v. B. F. Dittmar Co., 124 Texas 564, 80 S. W. (2d) 939; Nevels v. Harris, 129 Texas 190, 102 S. W. (2d) 1046, 109 A. L. R. 1464. In this case the party charging the commission did not negotiate the loan to a third party, but made it himself out of his own funds; and, as a consequence, the commission charged and collected by him must be included as interest charged for the use of the money lent.
It is insisted by the defendant that the commission charged by him constituted a lawful charge for the sale and advancement of his credit, to enable the borrower to obtain the money. It may be accepted as true that where one acts in good faith, and not for the purpose of concealing a usurious loan made by him, he may sell his credit to a borrower for a consideration;
Greever relies heavily on the case of McDaniel v. Orr (Com. App.), 30 S. W. (2d) 489. However, the facts in that case are clearly distinguishable from the facts in the case at bar. In that case the money was borrowed to construct a building. The debtor, in addition to repaying the principal, paid the creditor $250.00 for “services.” The creditor pleaded and offered to prove that the $250.00 was paid for services rendered by him to the debtor in connection with the construction of the building. On the other hand, the debtor contended that it was paid as interest for the use of-the money-. This Court simply held that it was a fact issue as to whether the $250.00 was paid for the use of the money or for the alleged extra services in connection with the construction of the building. Admittedly, a lender may, without violating the usury law, make an extra charge for any distinctly separate additional consideration other than the simple lending of the money (42 Tex. Jur. 932; Nevels v. Harris, 129 Texas 190, 102 S. W. (2d) 1046) ; and where there is any dispute in the evidence as to whether there was
Under the above authorities the three per cent commission collected, as per the contract, during the first ninety days after the lending of the money to Persky was clearly usurious, and would form the basis for the statutory penalty. It will be noted, however, that the original contract to pay a commission covered only a period of ninety days after the original notes were executed. When these notes matured they were renewed by the execution of similar notes. Persky not only paid the three per cent commission during the first ninety days, but continued to pay it, and Greever continued to accept it, after the expiration of the ninety-day period. But Greever denied that there was any contract or agreement by which Persky was obligated to continue to pay such three per cent commission afer the expiration of the first ninety-day period. He testified that the payments were .made by check and that he marked thereon “commission,” and applied them as such. He requested the court to submit to the jury an issue as to whether there was such a contract, but the court declined to submit it. Certainly no such contract was established by the undisputed evidence. It seems to be very well settled in this State that in order to authorize the recovery of the penalty provided for under our statutes for the collection of usurius interest, there must have been a contract to pay the usurious ■interest so collected. Voluntary acceptance of interest in excess of the lawful rate is not sufficient. Arts. 5071, 5073, R. C. S. 1925; 42 Tex. Jur. 896; Palmetto Lbr. Co. v. Gibbs, 124 Texas 615, 80 S. W. (2d) 742; Continental Savings & Building Assn. v. Wood (Tex. Civ. App.), 33 S. W. (2d) 770, aff. (Com. App.), 56 S. W. (2d) 641; Federal Mortgage Co. v. Davis (Tex. Civ. App.), 100 S. W. (2d) 717, 721, aff. 131 Texas 46, 111 S. W. (2d) 1066; Rest Haven Cemetery v. Swilley (Tex. Civ. App.), 127 S. W. (2d) 996. Since the evidence did not conclusively establish. a contract to pay the three per cent commission after the
Plaintiff’s petition alleged that the total interest paid within two years of the filing of the suit amounted to $4,345.00. It Tisted each payment so made. Upon the trial it was discovered that an item of $150.00 paid October 2, 1937, was omitted from the list of payments set out in the petition, although it was included in the total of $4,345.00, whereupon plaintiff, with leave of the court, filed a trial amendment covering such omitted item. This trial amendment was filed February 14, 1941. The Court of Civil Appeals was of the opinion that the filing of the original suit was' not sufficient to stop the running of limitation on the $150.00 item above mentioned, and since that payment had been made more than two years prior to the filing of the trial amendment, the right to recover thereon was barred bv limitation. We are not in accord with this view. This item of $150.00 was included in the total item of $4,345.00, upon which recovery was sought in the original petition. The trial amendment merely gave the date and amount of one of the items incffided therein. It is clear that the cause of action stated in the trial amendment is a part of the original action. It is not based upon and does not grow out of a new, distinct, or different transaction or occurrence from that stated in the original petition, and is therefore not barred by the statute of limitation. General Laws, 42nd Leg., 1931, p. 194 (Yernon’s Annotated Revised Statutes. Art. 5539b); 28 Tex. Jur. 213; Goodwin v. Hidalgo County Water Control & Improvement Dist. No. 1, 58 S. W. (2d) 1092; First State Bank & Trust Co. of Rio Grande City v. Ramirez, 133 Texas 178, 126 S. W. (2d) 16; Cameron County Water Improvement Dist No. 8 v. Western-Metal Mfg. Co. of Texas (Tex. Civ. App.), 125 S. W. (2d) 650.
• The suit was brought by Mrs. Goldie Persky as guardian °í .^e. estate of I. B. Persky. By plea in abatement the defend^.
The judgment of the Court of Civil Appeals, reversing the judgment of the trial court and remanding the cause for a new trial, is affirmed.
Opinion delivered November 4, 1942.
Rehearing overruled December 2, 1942.