Herring v. Crawford

Jenkins, J. Usury was pleaded to a suit on a notei payable to the Farmers State Bank for the principal sum of $124, dated October 2, 1914, due December 1, 1914, and bearing interest from maturity at eight per cent, per annum, and the defendant, who was the only witness, testified as.follows: “I gave the Farmers State Bank a note for $124 in October or November of 1914. On the day I gave note I borrowed $118 or $119. There were some odd cents. The amount I borrowed did not exceed $119. I do not know the exact amount.” Asked, on cross-examination, if he did not borrow as much as $121, the witness answered that he did not. “It was not more than $119. I can not tell the exact amount. I do not know how much I got. I only made the one loan from them. ” Reid, that the testimony was of sufficient certainty to establish the fact that a sum not exceeding $119 was received by the defendant from the plaintiff in the loan. This holding is not in conflict with the ruling made in the case of Equitable Mortgage Co. v. Watson, 116 Ga. 679 (43 S. E. 49). In that case nothing positive as to the amount received was testified to. Since the note does not purport to recite what amount was deducted for interest prior to its maturity, and the defendant offered the only testimony upon this subject, the judgment for the amount sued for was erroneous,' and it' is' ordered that the judgment of the court below be affirmed on condition that the plaintiffs shall, within twenty days after the remittitur from this court is made the judgment of the court below, write off from the judgment the usury therein, so that the judgment shall include only the principal sum of $119, with interest thereon at eight per cent, per annum from the date of the note. If the plaintiffs shall fail to comply with this condition, it is ordered that the judgment be reversed. Judgment affirmed, on condition. Broyles, P. J., and Bloodworih, J., concur.