E. R. Slavik and D. J. Slavik and Mobile Parks of America Corporation sued Clyde Skeen for payment of notes given by Skeen to plaintiffs, foreclosure on the property held as security for the debt, and attorneys’ fees. Defendant contended at trial, as on this appeal, that the notes sued upon are usurious to such an extent that they are unenforceable under Tex.Rev.Civ.Stat.Ann. art. 5069-1.06(2) (Vernon 1971), as being twice the rates of interest allowed by Tex. Rev.Civ.Stat.Ann. art. 5069-1.02 (Vernon 1971) and art. 1302-2.09 (Vernon Supp. 1976). The trial court ruled in favor of plaintiffs, and defendant appealed. We hold that the trial court erred in rendering judgment for plaintiffs because the series of transactions leading up to the notes and other obligations sued upon by plaintiffs did involve the imposition of usurious interest rates that were more than double the rate authorized by law. 1 Accordingly, we render judgment for defendant and that plaintiffs shall take nothing, as mandated by article 5069-1.06(2).
The first transaction in the series was a guaranty by defendant Skeen of three promissory notes by Crescent General Corporation to plaintiff Mobile Dealers of America. Mobile had previously advanced to Crescent $325,000 and had taken three notes of Crescent, one for $250,000, another for $75,000, both bearing interest at nine percent, and a third note for $100,000, bearing no interest. Each of the three notes was payable in December 1971, except for one payment of $20,000 which was made in June 1971. In August 1971 the three notes were cancelled, and three new notes totaling $425,000 were issued by Crescent to Mobile, although no additional money was advanced by Mobile to Crescent. The new notes included one for $175,000 and another *519 for $170,000, both bearing interest at nine percent, and a third for $80,000 bearing no interest. Since $20,000 had already been paid on the original $425,000 owed by Crescent to Mobile (of which only $305,000 represented funds actually advanced), the August transaction increased Crescent’s ostensible indebtedness to Mobile by $20,000 without any money changing hands. These were the notes guaranteed by Skeen.
In September, Crescent paid off the $175,000 note, leaving an outstanding debt of $250,000 plus some interest. In December 1971 Crescent paid Mobile $50,000, reducing the outstanding balance to $200,000. The two remaining notes were then can-celled, and Crescent executed two new notes to Mobile in the amounts of $120,000 and $100,000, both bearing interest at nine percent, thus increasing the balance by $20,000 without any money changing hands from Mobile to Crescent. Plaintiff E. R. Slavik testified that the two $20,000 increases in indebtedness involved in the August and December renegotiations were fees charged by Mobile to Crescent for the service of extending the loans. Both of these notes were likewise guaranteed by Skeen.
In February of 1972 Skeen and the Sla-viks entered into what they characterized as a “put and call” agreement, whereby the Slaviks paid Skeen $300,000 for stock in Crescent and also in International World Encyclopedia Corporation, subject to the Slaviks’ right to demand repurchase of the stock by Skeen for $360,000. E. R. Slavik testified that this provided him and his brother with a $20,000 to $60,000 “margin” to compensate them for the risks they were taking by entering into this agreement.
In March 1973 the parties entered into a new agreement which plaintiffs contend was a settlement of all existing claims. The agreement expressly provided that Skeen and Crescent release Mobile and the Slaviks from all liability for any causes of action which may have accrued up to that date, including usury claims growing out of the loan transactions and “put and call” agreement outlined above. Under the settlement agreement Skeen paid $50,000 to the Slaviks and $5,000 to the Slaviks’ attorney, and signed two notes, one for $310,000 payable to the Slaviks bearing Seven and a quarter percent interest, and another for $235,950 payable to Mobile bearing interest at six and a quarter percent. No money was paid by the Slaviks or Mobile for these notes. Defendant argues that the $310,000 note was merely a continuation of the $360,000 obligation under the “put and call” agreement minus the $50,000 payment of March 5, 1973, and that the $235,950 note represented a continuation of the $220,000 obligation incurred by Crescent as a result of the negotiations of December 1971 with the addition of accrued interest. Skeen made some payments on these notes, but eventually defaulted, whereupon plaintiffs brought this suit for $204,550 alleged to be owed by Skeen to the Slaviks, plus interest accrued thereon, $173,825 alleged to be owed by Skeen to Mobile, plus interest accrued thereon, foreclosure on the collateral for these notes, and attorneys’ fees.
On appeal, defendant contends that the original loan agreement, the extension fees, and the “put and call” arrangement were all usurious loan transactions and that the settlement and release agreement of March 1973 can have no effect upon the usury because that agreement carried forward the usurious obligations originally contracted for in March 1971 and February 1972. Defendant further contends that because he is not obligated to pay these usurious debts, foreclosure on the collateral based on his default was error, as was the trial court’s award of attorneys’ fees to plaintiffs. Defendant has not claimed any attorneys’ fees, either in the trial court or in this court, nor has he claimed any penalty for the alleged usury other than by way of defense to the notes sued upon.
Plaintiffs contend that the existence of usury is a fact issue which was presumptively found by the trial judge in favor of plaintiffs and that, in the absence of findings of fact or conclusions of law, which were not requested by the defendant, the trial court’s conclusion on the usury issue is *520 a fact finding, binding upon this court on appeal. Plaintiffs further contend that in order successfully to assert the defense of usury, defendant has to satisfy a burden of proof to show that there was a scheme to charge usury in the absence of notes which on their face proved usury. Plaintiffs also assert that they could charge fees for loans apart from interest without violating usury laws and that the settlement and release agreement of March 1973 cleansed the transactions of any usury which may have existed in the earlier agreements, thereby denying defendant his usury defense to the notes issued as part of the settlement and release agreement.
We turn to plaintiffs’ first contention that, in reviewing the trial court’s judgment, we must presume findings in support of the judgment if supported by any evidence. It is true that, in the absence of a jury verdict or any express findings of fact and conclusions of law by the trial court, we must presume all fact findings in favor of the trial court’s judgment; however, where the evidence establishes as a matter of law facts inconsistent with the judgment, the presumption cannot be effective, and we must overturn the trial court’s judgment.
Lockhart v. Garner,
Additionally, plaintiffs argue that because the March 1973 notes do not call for usurious interest rates upon their faces, defendant must establish that there was a corrupt agreement or scheme to conceal the usury which was contemplated by plaintiffs, citing
Moss v. Metropolitan Nat’l Bank,
The cases cited above are inappo-site because here plaintiffs admitted at trial that they were charging fees solely as compensation for the service of lending money, and the amounts of the fees charged are in excess of the legal interest rates. Since these facts are indisputably established by the record, defendant has satisfied his burden of proof to show an agreement to loan money at usurious rates of interest. Plaintiff E. R. Slavik'himself testified that, in exchange for Crescent’s $425,000 in promissory notes, Mobile loaned Crescent only $325,000 at nine percent interest and that the extra $100,000 obligation was owed to Mobile for use of Mobile’s credit in obtaining the money and for undertaking the risk in lending the money to Crescent. Thus, Slavik’s own description of the transaction establishes that the $100,000 was interest, as it is defined by Tex.Rev.Civ.Stat.Ann. art. 5069-1.01(a) (Vernon 1971), which provides: “ ‘Interest’ is the compensation allowed by law for the use or forbearance or detention of money . . . .”
Greever v.
*521
Persky,
Plaintiffs further contend that they can legally exact an additional “and distinctly separate” consideration for lending the money without violating the usury laws, citing
Gonzales County Savings and Loan Ass’n v. Freeman,
Plaintiffs also contend that this usury has nothing to do with their lawsuit against Skeen because these loans were made to Crescent, not to Skeen. We cannot agree. In March 1973, when Skeen issued his personal note to Mobile for $235,950, it is apparent from the sums involved that Skeen was assuming the indebtedness of Crescent to Mobile carried through the various transactions from March 1971, outlined above. This indebtedness must, therefore, have necessarily included the usurious interest charges against Crescent.
First Nat’l Bank of Montague v. Waybourn,
Plaintiffs also argue that this earlier usury should have no bearing on the outcome of this litigation because it all occurred before the release and settlement agreement of March 1973, citing
Commerce Trust Co. v. Ramp,
We turn now to the $310,000 note issued by Skeen to the Slaviks in March 1973 after the release and settlement agreement. Under the “put and call” agreement, Skeen “sold” blocks of shares in Crescent and International World Encyclopedia to the Slaviks for $300,000. However, the
*522
agreement provided that the Slaviks could call upon Skeen at any time to repurchase the stock for $360,000. That agreement was entered into in February 1972. Skeen paid the Slaviks $50,000 and issued a note to the Slaviks for $310,000 at the same time that he signed the release and settlement agreement. Instead of purging the transaction of previous usurious interest, this arrangement added more usurious interest by charging interest on notes which carried forward earlier usurious charges. We construe the “put and call” agreement as a loan to Skeen, since he had an absolute obligation to repay the $300,000 advanced to him for the stock, plus $60,000. Under these circumstances, we must hold that the $60,000 constitutes interest for the use of the $300,000 at twenty percent, more than twice the rate of interest allowed for personal loans under article 5069-1.02 (Vernon 1971).
Johns
v.
Jaeb,
In light of our holdings that both of the promissory notes sued upon by plaintiffs are tainted by usurious interest in excess of twice the rate authorized by the law, we must conclude that Skeen has no liability for the remaining principal and interest on either of the notes under article 5069-1.-06(2) (Vernon 1971) and that the judgment of the trial court granting damages, foreclosure on the collateral, and attorneys’ fees, based on such liability, must be reversed. Accordingly, we reverse the judgment of the trial court and render judgment that plaintiffs take nothing.
Reversed and rendered.
Notes
. The following is a summary of the transactions involved in this suit:
March 4, 1971 — Crescent received $325,000 from Mobile Parks of America Crescent issued three notes:
$250,000 interest-bearing, secured note
75,000 interest-bearing, secured note
100,000 noninterest-bearing, unsecured note
_ $425,000 Total obligation
June 30, 1971 — Crescent paid $20,000 installment on $100,000 note.
August 2, 1971 — Three notes of March 4, 1971 were cancelled. No new money advanced, but additional $20,000 obligation in new notes, infra.
Crescent issued three new notes — all unsecured and guaranteed by Skeen:
$175,000
170,000
80.000
$425,000 Total obligation
September 15, 1971 — Crescent paid $175,000 note
December 15, 1971 — Remaining two notes of August 2, 1971 were cancelled.
No new money advanced, but $20,000 extension fee charged. Crescent borrowed $50,-000 from Skeen; applied same to reduce balance under old notes
Crescent issued two new notes personally guaranteed by Skeen:
$120,000
100.000
$220,000 Total obligation
February 28, 1972 — Skeen received $300,000 from Slaviks “Put-call” agreement for $360,-000 payback.
March 5, 1973 — Skeen paid $50,000 to Slaviks under “put-call” agreement
Skeen paid $5,000 to Passman; releases exchanged; no new money
Skeen issued two new notes:
$310,000 To Slaviks per “put-call” agreement
235,950 To Mobile Parks of America per _ Crescent obligation
$545,950 Total obligation