Opinion

Skelton Motor Co. v. Brown

  • 231 Ark. 801
  • 332 S.W.2d 607
  • 1960 Ark. LEXIS 318
Court
Supreme Court of Arkansas
Filed
Mar 7, 1960
Status
Published
Author
McFaddin
On the bench
McFaddin, Smith
Cited by
2 cases
Authority
More cited than 1.4%

The opinion

Ed. F. McFaddin, Associate Justice, (Concurring). I concur in the reversal of the judgment. It has always been my understanding that usury must be both pleaded and proved. Commercial Credit Co. v. Chandler, 218 Ark. 966 , 239 S. W. 2d 1009 ; and Cox v. Darragh, 227 Ark. 399 , 299 S. W. 2d 193 . Usury is a question of fact; and, like limitations, cannot be claimed by demurrer unless the fact of usury clearly appears on the face of the complaint. 55 Am. Jur. 435 , “Usury” § 162. In the case at bar, usury did not appear on the face of the complaint; and yet the defendant attempted to urge usury by demurrer. I think it was improper to sustain such demurrer. Court proceedings should not be “short-circuited”.

The majority opinion compounds the “short-circuiting” by finding, as a fact, that there was no usury. The majority may be correct pn such fact question; but I never reach that issue because I think the demurrer should have been overruled and the defendant allowed to -plead further.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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