San Antonio daily light. [volume] (San Antonio, Tex.) 1886-1907, 1894-03-24

to be paid 1t was clear that the paw
ment for stock was not a device TO cover
uSuTy and therefore he reversed Judge
Kings decision and remanded the case
for retrial.
When the case was again tried, the Dis
trict court gave judgment for the asSOcia-
ton. Abbott aDpealed and the case came
before the Fifth Appellate court of Texas,
and in the course of his Judgment. Chief
Justice James said: This presents case
where a borrower gives an obligation for
81 coo, and only receives 81 44O, and prom
Uses to make monthly payments, at inter-
est of less than II per cent per annum ON
the sum actually received. 1t does not fol-
low, because large excess of principal
appears in the note, that It. considered
with the rate of interest contracted for.
would amount to uSury. The existence of
uSury must be made to appear by the
party claiming it, AID it does not appear
on the face of this note. The insurance.
attorneys fees and cost of advertisement
of trustees sales were properly charged
against Abbott"
Against this decision Abbott again ap-
pealed to the Supreme court and Asso-
ciate Justice Brown. reversed the iudg-
ment of Justice Henry, made two years
before, and which was cOnsonant with
the Arkansaw decision He held that the
premium charged to Abbott for the prior
right of borrowing was disguise for I'M
lawful interest, and in fact was a sum
paid for the use of the money, in addition
TO lawful interest" On this ruling he
found that the premium and interest
made the loan usurouS. He declared that
the Sis interest with S9345O, value of
Abbott'S stock, made 81, $3.50 to his credit
and that, deducting the 81 ,440 loan, would
have balance due of 500 50, for which
he gave judgment, with costs and in
terests on the S20950. from July l, 1891:
also for six shares of stock, subject to
proper charges, III any.
Mr.. William Aubrey has filed motion
for rehearing OF the case on behalf of the
association and submits the court erred:
First-In holding that the premium
provided for was disguise for unlawful
interest and urges that the bylaws of the
association, to which Abbott subscribed,
must be taken as part of the contract;
that bylaw, article g. which provides
that money I'm the treasury shall be loan
ed to the stockholder who bids the high
est premium, for priority Of loan, at rate
not exceeding s per cent interest, was
binding on both parties; that Abbott ap-
peared in open competition with other
members, got the loan, and paid
an annual interest of $3.50, where
according to law, Sl72.S0 could
have been legally charged. The PEI
justified it, shows that it is voluntary
and not an interest, that 1t cannot be so
caSSed, nor used to legally establish al
legged usury, citing Endlich on Building
associations, sections 3SS; End Am
and Eng. Encyc. Law, PIP. 629 ct seQ.;
Strohen VS.. Franklin Assn. s Art, S44
Re We VS.. the Ladies' Building asSocia-
ton, 10 S. w. OILS, and AYERS that the
state courts have never held that pay
ment of premiums vitiated the contract
for payment of interest, and analyses the
case Of Jackson q Cassidy, IS, Tex. 2S7.
which, though used by Abbott's counsel,
has no real bearing on the case. 1t goes
on to show that there were two distinct
transactions, one to take and pay for
shares of the association, the other to
borrow money and pay interest therefor,
and that such payments are governed by
the Building associations rules, so long
as the loan interest is not usuriOuS. 1t
shows that by these rules. the privilege of
receiving money, actually paid, was given
only to those whose stock was not pledged
as AbbOtt'S was, to secure loan, and then
only after requisite notice Of withdrawal,
1t further shows that Abbott to Nov.
1890 had laid in ST on each share OF stock
that at maturity would be worth $2GO In
applying this to the payment of the debt
the association would have to pay Abbott
1923 more than he paid. The stock how
ever, in June 1891, was only worth Sl33
but in time would have come to par
value if the series had not been cancelled
by agreement of stockholders (held bind
ing under the previous decisiOnD and
that never can mature. 1t further juSti-
lies the premium system and shows that
the cases cited on this case as proof OF
uSury have no bearing upon IL.
In asking for rehearng the aSSOcia-
tions request either of the following judg-
mentS:
FirSt-For full amount of debt due it.
with legal interest, foreclosure of lien on
real estate and stock, thus giving Abbott
the value of his stock and real estate Sc
curty, or
SecOnd-For full amount of money
actually received by Abbott with twelve
per cent per annum interest thereon and
with foreclosure of lien, or
Third-FOr full amount of money re-
ceiyed by Abbott, with s per cent. interest,
as fixed by the bylaws of the association
and with foreclosure of lien, or
Fourth-FOr the full amount of the
money received by Abbott with interests,
to be determined by the court, such judg
ment to be credited with the value OF
plaintiffs seven shares of the first series
of stock, not at $133, the value of
shares upon which payments were made
until June 1891, but at the value of such
shares upon which payments were made
to November 1890, when, as admitted by
Abbott, he ceased to pay and subject also
to the right Of Abbott to recover the re-
naming six shares in the sixth series.
To these amounts, in all cases, should
be added the money paid for insurance
by association, its attorneys fees.
costs OF advertising sales and fines as
shown by the records of the court.
And the association respectfully prayS
the court to grant IL rehearng of the
case and render judgments, as may APP
pear just, In one of the modes indicated.
The application was filed yesterday in
Austin. Mr.. William Aubrey appeared
for the association and Mr.. Oscar Berg
StrOm for the defendant. 1t was suggest
cd fha Tho ca hn diSnrnsnnh hrnA