Stout, Goldsborough & Perry v. Ennis National Bank

Citations

• 69 Tex. 384
• 8 S.W. 808
• 1887 Tex. LEXIS 838

Syllabus

<p>1. Usurious Interest. — When partial payment is made to a national bank under a contract to pay usurious interest, in the absence oí a stipulation as to how the payment shall be appropriated, the law will apply it in liquidation of that portion of the contract which is legal, and the bank may afterwards avoid the penalty fixed by act of Congress for collecting usurious interest by relinquishing claim for it. If, however, a partial payment on the debt is, by agreement between the bank and the debtor, appropriated to the payment of usurious interest, the locus penitential can not exist, since the offense has been consummated and the right to recover the penalty is fixnd.</p> <p>3. Partnership. — A partner may bind his firm by the release of a debt due the partnership of which he is a member, if the debtor has neither knowledge nor notice that the partner is acting in violation of his obligation and duties to the firm, or for purposes disapproved of by the firm, or in fraud of its rights.</p> <p>3. Release — Partners—Usurious Interest — National Banks. — A settlement and release executed by a member of a copartnership to a national bank which had collected usurious interest from the firm, recited: “ We (the firm) do renounce and declare to be fully satisfied any and all rights, rights of action, .claim, or demand, that we may have or be entitled to under any law of the United States, to recover any sum of money from said Ennis National Bank, by reason of us having paid heretofore to said bank any interest at a greater rate than twelve per cent per annum,” held:</p> <p>(1) The release, though it may have been made with fraudulent intent as to the other partners, was binding on the firm when accepted by the bank in ignorance of such fraudulent intent.</p> <p>(2) Farnival v. Weston, 7 Moore, 356, and Arton v. Booth, 4 Moore, 171, cited.</p> <p>(3) The mere fact that a partner has executed a release.without the consent, or even against the opposition of his copartners,