254 S.W. 218 | Tex. App. | 1923
Appellants do not complain of the judgment so far as it is in favor of the Security State Bank. Their contention is that it appeared from the testimony as a matter of law that they paid, and appellee Jackson received and collected of them on the contract evidenced by the note, usurious interest amounting to $2,500, and therefore that the trial court erred when he refused their request that he instruct the jury to return a verdict in their favor against Jackson for $5,000. We think it so appeared, and that the trial court erred as claimed.
Testimony heard at the trial showed that on March 8, 1920, appellants called at the National Bank of Commerce of Fort Worth, of which Jackson was vice president, to see Mr. Benson, the president of said bank, with whom they had dealt on former occasions, about obtaining a loan of $5,000. They were told by Jackson that the president was out of the city, but would probably be back the next morning. They called at the bank again the next morning, and, the president being still absent, took up with Jackson the matter of procuring the loan. The testimony was conflicting as to what then and afterwards occurred between Jackson and appellants. Jackson testified: That appellants declared that they "didn't care to borrow any further moneys from the bank," and offered to pay him $2,500 if he would get the $5,000 they needed for them. That he told them he did not have the money himself, but "would see if he could get it." That later he called at the Security State Bank and was informed by the president thereof that he could get the money on his (Jackson's) note, or on a note indorsed by him and secured as he offered to secure it. That he then advised appellants of what passed between him and the president of the Security Bank. That they thereupon executed and delivered to him their note as follows:
$7,500.00. Fort Worth, Texas, Mar. 9, 1920.
"30 days after date, without grace, I, we, or either of us promise to pay to the order of J. H. Jackson seventy-five hundred and no one-hundredths dollars, for value received, at the National Bank of Commerce of Fort Worth, with interest from date at the rate of 10 per cent. per annum, and ten per cent. of principal and interest additional for attorney's fee, if placed in the hands of an attorney for collection. [Signed] J. W. Sayles Co.,
"By J. W. Sayles."
That he (Jackson) took the note to the Security State Bank, indorsed it in blank, and that that bank thereupon by his direction credited appellants with $5.000 of the amount thereof and him (Jackson) with $2,500 thereof on its books; and that he (Jackson) afterward (on April 12, 1920) checked out the $2,500 so placed to his credit. It conclusively appeared from other testimony that appellants received only $5,000 on account of the note, and that they paid the Security State Bank $7,500 on account thereof when the note became due.
On the case made by the facts and testimony stated, it is plain that appellants bound themselves to pay appellee or his indorsee $7,500 and 10 per cent. interest thereon, and that they did pay his indorsee $7,500. What was the consideration for their undertaking? Appellee insists it was the $5,000 loaned them and his services as a broker in procuring the loan for them. Who loaned the $5,000 to them? Clearly it was not the Security State Bank. If it loaned the amount of the note, instead of purchasing it outright of Jackson, as the testimony indicated it did, the loan was to Jackson, and not to appellants. Plainly, therefore, the answer to the question is that Jackson loaned the $5,000 to appellants. As he did, and received and collected of appellants $2,500 for the use thereof for 30 days, the transaction was usurious, and appellants were entitled to recover of him as they sought to.
The judgment will be affirmed, so far as it is in favor of the Security State Bank, but it will be reversed, so far as it is in Jackson's favor, and judgment will be here rendered against him in appellants' favor for $5,000 and interest thereon from June 8, 1922.
