Miner v. Paris Exchange Bank

Bonner, Associate Justice.

Appellant Miner, on June 5, 1876, was indebted to appellee, Paris Exchange Bank, in the sum of $2,233.33, principal and interest.

Time of payment was extended to January 1, 1877, and legal conventional interest was calculated on the above amount to this last named date, which, with the amount then due, made the sum of $2,360, for which the note here sued on was given.

It was due January 1, 1877, bears interest at the rate of one per centum per month from maturity, which of itself was not against the provisions of the statute regulating interest, and *561 contains the farther stipulation for ten per centum for attorney’s fees in the event of suit.

Upon default of payment, suit was instituted upon the note, when appellant Miner set up the defense of usury, upon the grounds that it bears interest upon interest and provides for the payment of attorney’s fees.

Neither the circumstances attending the transaction, nor other facts tending to prove usury than those above stated, were in evidence.

Judgment was rendered for the bank, from which this appeal is taken.

1. In the absence of evidence to the contrary, the law will not presume that a contract is usurious. Mills v. Johnson, 23 Tex., 329 .

2. Compound interest is not of itself usurious. Mills v. Johnson, 23 Tex., 329 ; Lewis v. Paschal, 37 Tex., 318 ; Mills v. Bales, 11 Conn., 495 ; Turner v. Miller, 1 Eng. (Ark.), 468; Wilcox v. Howland, 3 Pick., 169 ; Brown v. Brent, 1 Hen. & M. (Va.), 4.

It is the usual practice with us to render judgment for the principal and interest then due, and this new principal to bear interest. This has been expressly decided not to be unlawful. Frazier v. Campbell, 5 Tex., 275 ; Coles v. Kelsey, 13 Tex., 78 .

3. If the contract were lawful in other respects, the conditional stipulation to pay the usual attorney’s fees in the event suit had to be instituted to enforce it, would be legal and founded upon a valuable consideration.

Such fees, though not an element of damages in an ordinary suit for the collection of money, can be made such by express contract. Roberts v. Palmore, 41 Tex., 617 .

4. There being no sufficient evidence to show an usurious intention on the part of the bank, it was not error in the court to so instruct the jury. Bond v. Mallow, 17 Tex., 636 , and authorities cited.

Affirmed.

[Opinion delivered June 1, 1880.]