Mitchell v. Napier, 22 Tex. 120

Mitchell v. Napier

22 Tex. 120 | Tex. | 1858

Wheeler, Ch. J.

The amended answer sets up two grounds of defence; first, that the consideration of the contract sued on was not, as it purports, the rent of a lot, but really was interest reserved at the rate of three per cent, per month upon the price of the lot; and secondly, that the obligation of the contract had been fully satisfied and discharged, by the re-transfer and assign*128ment to the plaintiff, of the lot and improvements, together with a large amount of other property.

If the contract on which the suit is brought is to be regarded as evidencing a sale, or if the parties contemplated a sale, and that was their substantial contract and intention, it would seem incompatible with such contract and intention, that the purchaser should, at the same time, covenant with his vendor, to pay him rent for the property the latter had sold him. It is scarcely to be supposed, that any man should have intended to contract to pay another rent for his own property; or, indeed, that he could make a valid and binding contract to that effect. It would seem to admit of little doubt, that if the parties intended a purchase, they did not intend the payment of rent for the property purchased. If they did not intend a purchase, it is not very reasonable to suppose, they would have gone on and built a rock stable upon the lot worth three or four thousand dollars, under a lease for a term of three years. It is quite immaterial, in what manner or form, or under what pretence it is cloaked, if the intention was, to reserve a greater rate of interest than the law allows for the use of money, it will vitiate the contract with the taint of usury. Whether the transaction was so intended, where upon its face, it does not appear to be usurious, is a question of intention for the decision of the jury. (Andrews v. Pond, 13 Peters, 76, 77; 5 Tex. Rep. 88; 2 Parsons on Cont. ch. 6, § 8, p. 385, et seq. and notes.) Without dwelling to comment upon all the evidence in the case, in view of the transaction as disclosed by it, we think it would be extremely difficult to say, the jury were not warranted by evidence to find the transaction usurious.

Rut upon the remaining ground of defence; that is, that the indebtedness of the defendant had been satisfied, we think it free from doubt, that the verdict was fully warranted by the evidence. It is in proof, that the plaintiff had procured the transfer back to himself, of the stable erected upon the lot, together with a large amount of other property, of which he is now in the possession and enjoyment. He is charged with not • having given any other consideration for it, than the discharge of the defendant’s indebtedness; and he is interrogated pointedly *129and fully as to the real facts and character of the transaction, and particularly what consideration he paid for this large amount of property; and although he is thus afforded the fullest opportunity to explain, he totally fails and refuses to give any answer to some of the most pointed and material questions propounded, or to give any satisfactory account of the transaction. Where a party is thus afforded the opportunity to explain, and fails or refuses to do so, the rational and legal presumption is, that a disclosure of the truth would make against him; and the jury are warranted in drawing the conclusion, that he cannot, consistently with the truth, answer otherwise than by a confession of the facts, which the questions are propounded to prove by his answers. It is upon this principle, that the refusal to answer is deemed a confession of the truth of the alleged fact, which the interrogatory is propounded to prove. The rule is deduced from the common observation and experience of mankind, that men are ever ready to state all that is favorable to themselves; and that, when a party is interrogated, as to the facts of a transaction, in which he has acted honestly and fairly towards the other party, he will not hesitate to state truly what the real facts of the transaction are. His answers will be full, free, and unreserved; manifesting neither evasiveness, nor the suppressio veri. How far the answers of the plaintiff to the interrogatories fall short of this test of truth and honesty, it is unnecessary to observe. They speak for themselves too plainly to require comment. Head in reference to the defendants’ answer to the action; the very distinct, explicit, particular, and unmistakeable questions put to the plaintiff, about matters of which it was impossible to suppose he was ignorant; and the other evidence in the case; they leave little doubt, as to the motive which prevented a full, and free disclosure of the facts sought to be elicited from the party. Considered with the other evidence in the case; we see no cause to hesitate in coming to the conclusion, that the verdict of the jury has attained the very truth and justice of the case; we think it warranted by the evidence, an d are therefore of opinion that the judgment be affirmed.

Judgment affirmed.