I concur in the judgment. I do not agree with the opinion of Mr. Justice York wherein he sustains the contention of respondents that the note on which defendants were sued as guarantors was an usurious contract in violation of the Usury Law. [1] The lapse of a reasonable time in completing a loan and paying over the money after the time the papers are dated does not render the loan usurious, where the parties act in good faith and with no intent to evade the usury laws. (Matthews v.Georgia State Sav. Assn., 132 Ark. 219 [200 S.W. 130, 21 A.L.R. 789].)
Delay in paying proceeds of loan to borrower if in good faith does not render transaction usurious. (McDougall v.Hachmeister, 184 Ark. 28 [41 S.W.2d 1088, 76 A.L.R. 1463], and note.)
[2] But I think that there was no contract of guaranty and therefore that there is no cause of action against respondents. Upon apparently sufficient evidence the court found that the defendants Ullman and Williams signed the instrument of guaranty in reliance upon certain escrow instructions wherein it appeared that the signature of Mrs. Harry Sebastian would be affixed thereto; that the defendants *Page 401 Ullman and Williams did not know at the time of such signature that the signature of Mrs. Sebastian was to be omitted from said guaranty, and did not know said fact until after the guaranty had been delivered to the plaintiff; that the guaranty was executed without valuable consideration and as an accommodation to the maker of the note.
When at the trial defendants Ullman and Williams were asked whether they signed the guaranty in reliance upon the fact that the escrow instructions called for the signature of Mrs. Sebastian, the plaintiff objected that this was not a part of the defense in this case. The witnesses answered that they did so rely. The objection was properly overruled. Those escrow instructions had been exhibited to these defendants before they signed. The answer of defendant Williams alleged the fact that there were to have been guarantors other than the ones appearing upon the guaranty contract, "but that some of the guarantors had been changed to the prejudice of this defendant". At the opening of the trial it was stipulated that whatever defense was pleaded in behalf of any one defendant should be considered as pleaded and available to all other defendants in the action. [3] From the evidence it appears that the only contract which the defendants executed or intended to execute was a contract in which Mrs. Sebastian was to join. With this understanding and preliminary agreement in force, in the absence of her signature there was no contract of guaranty. For the foregoing reasons it is my conclusion that the plaintiff failed to establish any cause of action against the respondents Ullman and Williams. As noted in the opinion of Mr. Justice York, supra, the appeal as against the defendant Horton has been dismissed. There were two other defendants named in the complaint, as to whom there was no appearance, nor any service of summons.
Houser, J., concurred. *Page 402