Goodgame v. Dawson , 242 Ala. 499 ( 1942 )

Appellee insists that we have disregarded their claim that usury as to the mortgage of June 12, 1930, was not duly pleaded. But that claim has not been overlooked. The bill alleges in substance that the usury consisted in the fact that the consideration of the mortgage was $5,900, to which was added bonuses of $600, making the total consideration $6,500, on which interest at eight percent. was added and agreed on. Whereas the evidence shows that on June 12, 1930, the agreement was that the consideration of the mortgage was $6,500, of which $3,000 was to be advanced later, and it was advanced. But it was as of June 12th, that the exact nature of the agreement speaks. It is unmistakable from the evidence, that the agreement was that the consideration was $6,500. To that amount was added not only the interest on it at eight percent. but a total of $650, being $5 to each of the one hundred and thirty notes. This can only be considered in the nature of a bonus and was of course usurious.

So that the only difference between the allegations of the bill and the proof in this respect is that the bill alleges that the consideration of the mortgage was $5,900, with a bonus added of $600, and the proof shows a consideration of $6,500 with a bonus of $650 added. We do not think the exactitude of correspondence between the pleadings and proof extends to the point of requiring a reversal of the decree, an amendment to correspond to the letter of the proof and then further consideration of it on that issue so fully covered by the evidence already taken.

There is no uncertainty of averment as in Bernheimer v. Gray,201 Ala. 462, 78 So. 840. Compare Williams v. Noland, 205 Ala. 63,87 So. 818.

The only question is one of variance, and that is chiefly in the statement of the principal amount of the consideration of the mortgage. It has never been supposed that this is fatal to relief in respect to questions other than the claim of usury. The amount of the bonus added as shown by the proof is $50 more than that alleged. But it was payable $5 a month for one hundred and thirty months without interest. The averments of the bill apprised the court and parties that the claim of usury consisted of a bonus of $600 added to the principal advanced. The proof varied only in exactitude of averment which did not prejudice the rights of the parties. The decree should not be reversed on that account.

The application for rehearing made by appellee is overruled.

The application filed by appellants was on a ground not argued or suggested until after our judgment was rendered. It cannot be now considered. Their contention however is not well taken, had it been duly presented. See the cases of Guin v. New England Mortgage Security Co., 92 Ala. 135, 8 So. 388; Stickney v. Moore, 108 Ala. 590, 19 So. 76.

The application for rehearing made by appellants is also overruled.

Applications for rehearing overruled.

GARDNER, C. J., and THOMAS and BROWN, JJ., concur.