The opinion
On Appellants’ Motion for Rehearing.
Appellants urge in their motion for i rehearing, among other things, that our holding in the instant case is in conflict with the holdings of numerous cited cases, particularly Eubanks v. Simpson (Tex.Civ.App.) 90 S.W.(2d) 291 ; Southern States Mortgage Co. v. Lykes (Tex.Civ.App.) 85 S.W.(2d) 780 ; and Temple Trust Co. v. Cooper (Tex.Civ.App.) 96 S.W.(2d) 408 .
Eubanks v. Simpson involved a note payable in 120 monthly installments, wherein $70 was deducted from the face of the loan for a “commission and title fee.” The court held that according to the face of the contract the interest rate did not exceed 10 per cent, per annum. Manifestly that case is not analogous to the case before us.
The case of Southern States Mortgage Co. v. Lykes, as in the case of Walker v. Temple Trust Company (Tex.Civ.App.) 60 S.W.(2d) 826 , affirmed in 124 Tex. 575 , 80 S.W.(2d) 935 , involved two deeds of ■trust and two sets of notes, the second series and deed of trust given expressly as a part of the interest to accrue on the principal note. The Lykes Case was ruled by the Walker Case.
In Temple Trust Company v. Cooper, supra, the same provision in the deed of trust was involved as here, and which the appellants urge removes from the contract any taint of usury. This provision Judge Hall of the Amarillo court construed as bringing that case within the construction of the contract involved in Walker v. Temple Trust Company. It is to be noted that Associate Justices Martin and Jackson merely concurred in the disposition of this case as to Glenn.
That there is conflict between Judge Hall’s holding on this proviso of the contract, our holding in the instant case, and our holding in Temple Trust Co. v. Stobaugh, 59 S.W.(2d) 916 , is, we think, manifest. In the Stobaugh Case we expressly held that the proviso in question did not remove the usury created by the accelerating maturity provisions of the contract; whereas, Judge Hall held that the identical provision did remove such taint of usury. The Supreme Court dismissed applications for writ of error in each of these two cases, though they are manifestly in conflict.
In the Cooper Case, Judge Hall predicated his holding upon the holding of the Supreme Court in Walker v. Temple Trust Company. While this same provision was colitained in the deed of trust in the Walker Case and quoted by Judge German in his opinion, careful reading of' that case shows that an entirely different character of transaction was involved from the one involved in the instant case. In the Walker Case two deeds of trust and two sets of notes were executed. The only basis for the contention that usury was involved in that transaction depended upon the acceleration provision with reference to the second series of notes, given expressly for unmatured interest on the principal note. While the proviso relied upon in the instant case was set out by Judge German in his opinion, along with other provisions of the notes and deeds of trust, a careful analysis of that opinion clearly discloses, we think, that the conclusion therein reached that the contract was not usürious was predicated upon other provisions and circumstances than the proviso here involved.
On the other hand, we expressly held that the provision where only one series of notes and deed of trust is executed, and no second series of interest notes is .involv *1043 ed, but the excess is written into the face of the principal note as a part thereof, and a clear intention disclosed to collect this excess in any event, this so-called saving provision does not apply. This was our express holding in the Stohaugh Case. While application for writ of error was dismissed in the Stohaugh Case, that case has been cited with approval on the other issues involved, in Adleson v. B. F. Dittmar Co., 124 Tex. 564 , 80 S.W.(2d) 939 , in an opinion adopted by the Supreme Court. We take it, therefore, that the Stohaugh Case announced the correct rule with reference to such provision, and that our construction has the approval of the Supreme Court.
The other questions raised on the motion for rehearing have, we think, been fully disposed of in the main opinion, and need not he further discussed here.
For the reasons stated, the motion is in all things overruled.