South Eastern Xpress, Inc. v. Bank of Crowley

OPINION HUGHES, Justice. South Eastern Xpress, Inc., (SEX) has appealed the judgment notwithstanding the verdict granted The Bank of Crowley (Bank) as to the suit by SEX against Bank for usury penalties on a series of notes. These notes represented loans from Bank to Paul A. Johnson. The jury had answered the 600 plus special issues in favor of SEX. SEX had sued to recover the penalties in its own right as well as by an assignment from Johnson. We affirm. The parties do not agree upon the statement of the case. However, it is undisputed that Johnson signed 106 notes made to Bank in various amounts during the period from November 1, 1973 through August 29, 1974. All of the notes except ten follow the form of the first one executed on November 1, 1973 in reciting: [88] The notes that varied include: One that had 90 days instead of 45 days; Three that had 60 days instead of 45 days; Five that had no “demand” recited and a date due; One that recited no “demand” but a 10 day due time — no finance charge; One that recited “Demand 10 days” — no finance charge; One had no signature. The balance of the notes are “Demand 45 days after date” with a due date in the bottom left hand corner and the name “Paul A. Johnson” written in a printed “SIGNATURE” space; that is, all but five which had “Paul A. Johnson” typed in the SIGNATURE space under which was “By Ben Hamrick” — the Ben Hamrick being a written signature. Ben Hamrick bought Johnson’s shares in SEX in 1976 with a four-year promissory note in the amount of $20,000. In the agreement of sale, Johnson assigned Ham-rick all Johnson’s “right, title and interest and claim to any assets of any kind belonging to South Eastern Xpress, Inc. or Paul A. Johnson Trucking Company.” On July 5,1979, an assignment was made by Johnson to SEX of any cause of action for usury penalties accruing to Johnson. The last note was executed August 29,1974. The last payment on a loan was made September 12, 1974. Point of error no. one avers that trial court erred in granting “Defendant’s Motion For Judgment Non Obstante Veredic-to.” Point of error nos. two through five aver error of trial court in denying plaintiff’s motion for judgment; not entering judgment for plaintiff; overruling plaintiff’s objections to court accepting verdict; and denying plaintiff’s motion for a new trial. Our ruling on point of error no. one effectively disposes of the other points. We agree with the learned trial judge that the claim for usury was not assignable since Tex.Rev.Civ.Stat.Ann. art. 5069-1.06 (1979) limits recovery for usurey to the obligor. Houston Sash and Door Co., Inc. v. Heaner, 577 S.W.2d 217 (Tex. 1979). Johnson, not SEX, was the obligor in this case. This article, being penal in nature is to be strictly construed. Pinemont Bank v. DuCroz, 528 S.W.2d 877 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.). We overrule point of error no. one. Having examined the other points of error in the light of our ruling on point of error no. one, we also overrule them. Affirmed.