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De Valenzuela v. Ross

Supreme Court of Alabama
Oct 4, 1934
156 So. 765 (Ala. 1934)

Opinion

1 Div. 805.

October 4, 1934.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Jesse F. Hogan, of Mobile, for appellant.

Parol evidence is admissible to show the intention of the parties and the circumstances surrounding the execution of the writing for the purpose of properly construing the writing. 22 C. J. 1181, 1186; Townley v. Corona O. I. Co., 200 Ala. 627, 77 So. 1; Southern R. Co. v. Cofer, 149 Ala. 565, 43 So. 102; 2 Williston on Contr. 1214, 1232, 629, 636; Mobile County v. Linch, 198 Ala. 57, 73 So. 423; Reeves v. Jordan, 197 Ala. 64, 72 So. 322; Smith v. Webb, 176 Ala. 596, 58 So. 913, 40 L.R.A. (N.S.) 1191; Hannon v. Espalla, 148 Ala. 313, 42 So. 443; Weir v. Long, 145 Ala. 328, 39 So. 974; Dexter v. Ohlander, 89 Ala. 262, 7 So. 115; Chamberlain v. Lesley, 39 Fla. 452, 22 So. 736; Seitz v. Brewers' Ref. Co., 141 U.S. 510, 12 S.Ct. 46, 35 L.Ed. 837. The showing was not offered to contradict the writing; it tended to show respondent did not occupy the room referred to in the contract, but an apartment of greater rental value. Complainant was entitled to credit on the debt equal to the value of the rental of the apartment. 34 Cyc. 633; 2 Story, 471; Bay Minette L. Co. v. Stapleton, 224 Ala. 175, 139 So. 342. If the contract should be construed as providing that respondent should have a room or apartment rent free as interest, that would amount to usury. 39 Cyc. 959; Jones v. Moore, 212 Ala. 248, 102 So. 200; Rapier v. Gulf City Paper Co., 77 Ala. 126; Code 1923, § 8567.

Stevens, McCorvey, McLeod, Goode Turner, of Mobile, for appellee.

Brief did not reach the Reporter.


Bill of complaint by the pledgor of a diamond brooch to redeem from the pledgee, claiming that the transaction was usurious and seeking an ascertainment of the amount lawfully due.

The trial court rejected a written showing of the complainant, which was the only evidence in the case, upon the ground that it varied or contradicted the written contract as exhibited by the bill of complaint. In this ruling, the trial court was in error as the evidence, as disclosed by said showing, did not contradict the contract. It merely set out the value of the rental of the room or apartment which was relevant to establish the charge of usury and, at most, showed a change of the subject-matter of the contract after the execution of same by setting up an implied modification by a change from a single room to an apartment of much greater value.

It is well settled by the decisions of this and many other courts that: "Where the lender is to receive something else than money for his loan, as property or services, the value of such profit being necessarily uncertain, the contract is not usurious, even though the probable value is greater than legal interest, unless the consideration so given is so palpably in excess of the certain profit allowed by law as to show a corrupt intent to violate the usury laws." Jones v. Moore, 212 Ala. 248, 102 So. 200, 204; 39 Cyc. 959; Wright v. McAlexander, 11 Ala. 236; Rapier v. Gulf City Paper Co., 77 Ala. 126. The showing here shows a use of the room or apartment in lieu of legal interest for the use of the money, and the value of same was in no sense uncertain or speculative and was so greatly in excess of the legal rate as to show oppression and an intent to violate the usury law. This is so, either of which view might prevail; that is, whether the respondent occupied a room worth $10 per month or changed to an apartment worth $25 per month. Should the facts set out in the showing be accepted by the trial court as true, the debt should be credited with the value of the rent already enjoyed by respondent, as section 8567 of the Code of 1923 not only provides for the forfeiture of interest, in law or equity, but that the amount so paid should be credited on the debt when the transaction is usurious.

The decree of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

THOMAS, BROWN, and KNIGHT, JJ., concur.


Summaries of

De Valenzuela v. Ross

Supreme Court of Alabama
Oct 4, 1934
156 So. 765 (Ala. 1934)
Case details for

De Valenzuela v. Ross

Case Details

Full title:DE VALENZUELA v. ROSS

Court:Supreme Court of Alabama

Date published: Oct 4, 1934

Citations

156 So. 765 (Ala. 1934)
156 So. 765