Ferguson v. Martin

70 S.W.2d 804, 1934 Tex. App. LEXIS 430

• Court: Court of Appeals of Texas
• Decided: April 7, 1934
• Docket: No. 11444.
• Status: Published

Opinions

LOONEY, Justice.

D. R. Martin sued H. W. Ferguson to recover double $261.56, as usurious interest paid on a loan of $3,000, and $45.65, the. unpaid portion of said loan. Plaintiff alleged, in substance, that, about February 19, 1925, he obtained a loan of $3,000 from defendant, for which he executed a note due November 1, 1925, bearing S per cent, interest per annum; that to obtain the loan defendant required plaintiff to pay $75 as an extra interest charge; that of the money borrowed defendant paid plaintiff only $2,-864.35, deducted $15 for preparation of papers, also deducted $75 as extra interest, retaining the sum of $45.65; that, in addition, plaintiff paid defendant $186.56, 8 per cent, interest provided in the note, totaling $261.56, interest paid, being in excess of 10 per cent, for the use of the money borrowed.

Defendant denied that he either exacted or received $75 as extra interest, or that he either exacted or received interest on the loan in excess of 8 per cent, as provided in the note; that, at the time plaintiff applied for the loan of $3,000, he was indebted to the Union Central Life Insurance Company in the sum of $14,000 and solicited a loan of $17,000 from the Dallas Joint-Stock Land Bank, of which defendant was president, for the purpose of taking up, at maturity, both the $14,000 loan with the Union Central Company and the $3,000 loan with defendant, and to that end' made formal application to the Land Bank for the loan; that, on consummating the $3,000 loan, defendant paid plaintiff $2,864.35, i. e., paid that amount to a bank at Arlington, for and on behalf of plaintiff, retained $17.35 for the preparation and recording of loan paper, also $117.-50 to cover expenses of the anticipated loan of $17,000, for which application was pending with the Land Bank; that neither amount was retained as interest on the $3,-000 note, and, as the contemplated loan to plaintiff by the Land Bank was never consummated, the amount retained ($117.50) to pay expenses incident thereto was neves used and is still in the hands of defendant.

After proper definitions, the court submitted issues embodying the respective contentions of the parties which were answered by the jury in plaintiff’s favor, as follows:

“Question No. 1.' Do you find from a preponderance of the evidence that the plaintiff Martin agreed to pay to the defendant Ferguson the sum of $75.00 as interest in addition to the 8 per cent, provided for in the note? Answer Yes or No. Answer: Yes.

“Question No. 2. Do you find from a preponderance of the evidence that the defendant Ferguson collected from the plaintiff Martin the sum of $75.00 as interest, in addition to the 8 per cent, provided for in the note? Answer Yes or No. Answer: Yes.

“Question No. 3. Do you find and believe from a preponderance of the evidence that the defendant Ferguson retained out of the $3000.00 loan $45.65 of plaintiff Martin’s money? Answer Yes or No. Answer: Yes.

“Question No. 4. Do you find from a preponderance of the evidence that the defendant Ferguson retained $117.50' of the $3000.-00 loan he made plaintiff Martin to cover the expense which the Dallas Joint-Stock Land Bank would charge Martin in the event it made him a loan of $17,000? Answer Yes or No. Answer: No.”

On these findings, the court rendered judgment in favor of plaintiff for $805.72, being the aggregate of the amounts sued for, plus interest, from which defendant appealed.

Appellant urges the proposition that, in order to recover the penalty provided by statute (Rev. St. 1925, art. 5073) for collecting usurious interest, it is necessary to plead and prove that the obligor contracted to pay, and did in fact pay, interest in excess of 10 per cent, per annum for the use of the money borrowed, insisting in this connection that appellee failed in -both, that is, to either allege or prove such a contract; hence the requested verdict in his favor Should have been directed.

We readily assent to the correctness of appellant’s proposition that, in order to recover in the statutory action, it is necessary to allege and prove that, as a part of the loan contract, the complaining party agreed to, and in fact did, pay for the use of money more than 10 per cent, interest.

However, we think the issue was properly pleaded; the petition alleged that, “In order to obtain the loan, the defendant required plaintiff to pay Fifteen Dollars ($15) to him for the purpose of preparing the loan papers, and further required plaintiff to pay him Seventy-Five Dollars ($75) for the purpose of making the loan, which sum of Seventy-Five Dollars ($75) was in fact an extra interest charge, and was so understood by both parties, and was exacted of plaintiff, and was paid by plaintiff, to defendant at the time of obtaining the loan; ⅜ ⅜ ⅜ ” therefore overrule the contention that the issue was not properly pleaded.

Appellant’s main contention is that the evidence failed to show that appellee agreed to pay interest in excess of 10 per cent, per annum for the use of the money borrowed.

Appellee’s testimony bearing on this phase of the case is to the effect that, when appellant was first approached for the $3,000 loan, he informfed' appbllee that a charge of $15 would be made for the preparation of loan papers, to which appellee agreed; that, on the day the loan papers were executed, and immediately thereafter, but before leaving, appellee again asked appellant, “Do you know exactly how much the charge is? He (appellant) said, I will charge you $75, and the reason I am charging you the $75 is because you have to have the money.” On cross-examination, appellee was asked and answered the following questions:

“Q. As I gathered a moment ago you never did agree to pay this $75.00? A. Didn’t pay it?

“Q. Didn’t agree to pay it. That wasn’t part of your agreement? A. I just never said anything and he (appellant) just had the paper signed and I went on out.

“Q. That wasn’t part of the agreement? A. It was part of the agreement then to pay this $75.00; I asked him what he was charging me and that was the charges for the $3,-000. * * *

“Q. I asked you if you agreed to it? A. You might say I did, because I didn’t say anything more.

“Q. But, did you? A. I walked out and I just went downstairs with my wife and said, ‘We done signed the paper, I guess we will have to stand for it.’ ”

If the item of $75 was exacted and paid as interest for the use of the $3,000 borrowed, the transaction is usurious; so the question turns on the sufficiency of evidence to establish the alleged agreement.

When told that he would be required to pay the additional amount of $75, appellee made no reply; however, the note and trust deed, although executed, were under his control and the transaction could have been halted, as no part of the money borrowed had been disbursed, so, if under the circumstances appellee assented to the arrangement, it must be inferred from his silence.

May assent to a proposition be manifested by silence? In Mactier v. Frith, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262, 272, the court said, “Keeping silence, under certain eir-eumstances, is an assent to a proposition.” In 13 O. J. p. 276, § 74, the doctrine is announced that “Acceptance of an offer may often be inferred from silence,” and in 6 R. C. L. p. 606, § 28, it is said that “There are various modes which are equally conclusive upon the parties. Under certain circumstances silence is an assent to a proposition.”

In view of this doctrine and the conflicting evidence with which the jury was confronted, we are unwilling to disturb their findings to the effect that appellee agreed'to pay and did pay appellant the sum of $75, as interest in addition to the 8 per cent, per annum provided in the note, thus rendering the transaction usurious. We therefore overrule appellant’s contention and affirm the judgment of the lower court.

Affirmed.