#### TEMPLE TRUST CO. et al. v. HANEY et ux.

Motion No. 13065; No. 7279.

Supreme Court of Texas.

April 5, 1939.

For former opinion affirming judgment of the Court of Civil Appeals, 103 S.W.2d 1035, see 107 S.W.2d 368.

Critz & Woodward, of Coleman, and Jno. B. Daniel, of Temple, for plaintiffs in error.

J. B. Dibrell, Jr., of Coleman, for defendants in error. ‘

GERMAN, Commissioner.

In a memorandum opinion we heretofore affirmed the judgment of the Court of Civil Appeals in this case. See 107 S.W.2d 368. The opinion of the *Court*of Civil Appeals is reported in 103 S.W.2d 1035. Motion for rehearing was overruled, but later the Court on its own motion set aside the order overruling the motion, and said motion has since been pending.

The suit was instituted by W. E. Haney and wife, who will be designated plaintiffs. It was against Temple Trust Company and its receiver, who will be referred to as defendants. The main question is one of usury. Two loans are involved, the first being referred to as No. 3345 and the other as No. 4176.

Loan No. 3345 was made May 15, 1924. It was for the sum of $2,000. However, in preparing the papers Temple Trust Company added 12% or $240; into the face of the notes, or bond, as additional interest, but which was designated as a part of the principal. Loan No. 4176 was made December 7, 1925, and was for the sum of $2,230. An additional amount of $270 was added to the principal of the bond as interest, -but it had the appearance of principal.

The provisions of the deeds of trust securing these loans are identical with the provisions of the deed of trust discussed in the case of Temple Trust Company et al. v. W. H. Sewell et ux., Tex.Sup., 126 S.W.2d 943, this day decided. In the opinion in the Sewell case these provisions are fully set out, .and the discussion there is applicable to this case. Following that decision we hold these loans usurious.

 We find it appropriate to discuss briefly two contentions made by plaintiffs in error. As in the Sewell case, *951an effort was made to give this transaction the appearance of a purchase of note and mechanic’s lien from Edgar Manning at a discount of $270.

This case was tried before the court without a jury. The court made a finding- of fact that the $270 was additional interest. It was undisputed that plaintiff W. E. Haney negotiated for the loan direct with R. E. L. Zimmerman, the local representative of Temple Trust Company. The papers were all prepared by the Temple Trust Company, and while bearing slightly different dates, were really in fact executed contemporaneously. In the letter of the Temple Trust Company to Zimmerman accompanying the papers the loan was referred to as follows: “#4176 — W. E. Haney et ux. — $2500—net $2230.” Haney testified that Manning agreed to build the house ' for $2,230! Practically the only evidence indicating that Manning had anything to do with the matter was the form of the instruments. There was ample evidence to support a finding that the form which the loan took was purely simulated, and the finding of the trial court in this regard is conclusive.

 Prior to January 4, 1930, plaintiffs paid in principal and interest upon this loan the sum of $878.09 and were entitled to a credit upon the principal of that amount. This left unpaid of the real principal the sum of $1,351.90; but, according to the purport of the simulated transaction, left unpaid $1,940 of principal. On January 4, 1930, plaintiffs paid the sum of $2,303.10. The trial court found that of this amount the sum of $373.10 was paid as interest, and the *Court*of Civil Appeals allowed recovery of double that amount under Article 5073 of the Revised Statutes of 1925. Defendants urge that as the payment of $2,303.10 had the effect of constituting a full performance of the contract, the payment of $373.10 then made could not form the basis of a recovery under the penalty statute; citing the case of Palmetto Lumber Co. v. Gibbs, 124 Tex. 615, 80 S.W.2d 742, 82 S.W.2d 376, 102 A.L.R. 474, 482, and Thompson v. Kansas City Life Insurance Co., Tex.Civ.App., 102 S.W.2d 285. Those cases are not in point here. In this instance the usurious interest was paid in pursuance of the executory contract and in performance of such contract. Certainly plaintiffs cannot be denied the privilege of recovering under Article 5073 simply because the effect of the payment then made, not considering the usurious interest, was to extinguish the principal. The payment of interest was not made after the contract was executed, but as a part of the final act of performance.

The motion for rehearing is in all things overruled.

Opinion adopted by the Supreme Court.