39 Ga. App. 297 | Ga. Ct. App. | 1929
H. W. Talley bought an automobile from WillysOverland Inc., trading in another car at $400 and paying down in
The original contract between Talley, the buyer, and WillysOverland Inc., the seller, recited an agreement between the parties to sell and to buy at the gross price of $1561.50, with a credit of $550, and a balance due of $1011.50 payable in 12 monthly installments as above stated. The defendant testified as follows:
“The note and contract sued on in this case was signed by me in the office of Mr. White of the Willys-Overland Co., on North Avenue. The first time I came in contact with the Commerical Credit Company was when I got the first notice of the first payment being due. I did not know who had bought the note. Commercial Credit Company rendered me no service on this automobile whatever. They issued a policy which is a joint policy. It was issued through the Home Insurance Company. They instructed*299 it issued to me and charged the premium to me. On this note there was a balance of $850, and $20 insurance which was transferred to the Commercial Credit Company. They charged me $140 interest on the $850 balance. When I bought the car I paid $150 cash and was allowed $400 on a car I traded in, making the first payment $550, leaving a balance of $850 payable in 12 monthly installments, 30 days apart, $84.30. I have paid to the present notes aggregating $758.70. There was a note of $102.35 paid by Mrs. Lloyd, also insurance in the amount of $141.96, making in all $1002.19 which I have paid to date, which, subtracted from $10.50, leaves $47.89, which is the amount I am due the Commercial Credit Company. They have added $161.50 interest to the original note because there was no carriage, and the $14 was for something else, I don’t know what. The $161.50 was made up of $20 insurance, and the balance was interest. They overcharged me in interest $107.50. I don’t know anything about carrying charges being added to the note. They never hauled me anywhere.”
J. B. White, sworn for the plaintiff, testified as follows: “I was once with the Willys-Overland Company, and witnessed the contract and note involved in this case. Can’t say that I wrote up the contract. There are different prices in automobiles when bought for cash and when bought on credit. I can’t say how the figures on the back of the contract were arrived at, because it has been a year, and I don’t remember. We have total carrying charges, and in this case the amount was $161.50. I don’t know what portion of it represents the interest.”
In E. Tris Napier Co. v. Trawick, 164 Ga. 781, 782 (139 S. E. 552), the Supreme Court held: “If a vendor and vendee agree upon a cash price of property which is the subject-matter of the sale, but the sale itself is not for cash but is distinctly on a credit until a particular time in the future, the transaction will not be rendered usurious because the vendor in order to make a time price on the property adds to the cash price another sum and includes the total amount thus arrived at in a promissory note which the purchaser gives, securing the same by a mortgage on realty. The law recognizes the right of a seller to make a difference in his cash price and his time price for his property; and thougH in a given instance this difference may exceed eight per cent., the law as to usury is not applicable.” It was further said, however, that,
In Rushing v. Worsham, 102 Ga. 825, 829 (30 S. E. 541), the Supreme Court said: “In transactions of this character, it is the duty of the court to look, not at the form and words, but at the substance of the transaction; and as on the one hand it should not pay attention to the words of the transaction or the manner in which it was negotiated, if the substance of it went to defeat the statute against usury, so on the other hand it ought not to rely upon the words, or form of the transaction, if in substance such transaction was legal. [Citation.] If it should appear that the negotiations contemplated a cash price, the payment of which was simply to be deferred in consideration of the computation of interest thereon, then the taking or contracting to take a greater rate of interest than that allowed by the statute would be unlawful.” While an intent to charge or exact usury will not be presumed, and the burden of proving usury rests upon the party pleading it (Equitable Mortgage Co. v. Watson, 116 Ga. 679 (2), 683, 43 S. E. 49; Harvard v. Davis, 145 Ga. 580 (4), 89 S. E. 740), the defendant’s testimony in the present case at least presented an issue of fact as to whether the automobile was sold on the basis of a credit price of $1561.50, with no charge as interest, or at a cash price of $1400, with interest added at an unlawful and exees
Judgment reversed.