Wilson v. Morgan , 89 S.W.2d 1085 ( 1936 )

This suit was brought by S.E. Morgan against J. Lee Wilson, doing business under the name of Galveston Credit Company, to recover the sum of $316, same being double the amount of interest paid by the plaintiff on several sums of money loaned by the defendant to plaintiff.

Plaintiff alleges that during a period of several months, as shown by his exhibits made a part of his petition, he borrowed from defendant several sums of money for which he executed and delivered to defendant his several notes; that the first loan was for the sum of $40 on December 2, 1931; that for such loan he was required by defendant to pay, and he did pay, $8 thereon monthly for four months, a total sum of $32, same being 20 per cent. on said sum as interest for each month, or 240 per cent. per annum on said sum; that of all the other sums so loaned by the defendant to plaintiff, plaintiff was required to pay and did pay to defendant the same rate of interest as was required and paid on the $40 first loaned; that the total amount of interest so unlawfully demanded and paid was $158. Plaintiff shows by his allegations that at the time this suit was brought he was indebted to defendant for unpaid principal in the sum of $35. Concluding, plaintiff alleged as follows: "That the amount paid by the plaintiff to date as interest, and received and collected by the defendant from plaintiff as interest upon said loans, was the unlawful and usurious amount of $158.00, whereby the defendant became bound and obligated to pay plaintiff double the amount of such unlawful and usurious interest paid on said loans, which aggregates the sum of $316.00, but that the defendant has failed to pay the same, or any part thereof, to plaintiff's damage in the sum of $316.00."

His prayer was for judgment for $316 and for costs of suit. The petition was duly sworn to as required by law in such cases.

Defendant answered by general demurrer and general denial.

The jury was chosen to try the cause, but after the evidence was closed, the court, upon motion of plaintiff, instructed the jury to return a verdict in favor of plaintiff for the sum of $294. Such verdict was returned, and judgment was accordingly rendered. Defendant has appealed.

Appellant's first contention for reversal is that the court erred in not sustaining his general demurrer to plaintiff's petition.

We overrule such contention.

Appellant by his second assignment insists that the court erred in not instructing a verdict for the defendant, in that there was no evidence showing that any money paid to appellant by appellee was paid as interest.

We overrule such contention. We think the undisputed evidence shows that appellee paid to appellant $147 for the use of the money loaned and for no other purpose.

By his third assignment appellant insists that inasmuch as it was shown that at the time this suit was brought there was due on the principal of the loans made the sum of $35, the court should have deducted said sum from the amount of the judgment awarded.

We sustain this last contention and we here reform the judgment of the trial court by deducting the $35 mentioned from the sum of $294 awarded to appellee, and as so reformed the judgment is affirmed.

Reformed and affirmed.