On Motion for Rehearing.
Appellee, in its motion for rehearing, strenuously contends that we erred in holding that appellant’s pleading for the recovery of usurious penalty and as to the Shan-nahan transaction, were sufficient against a general demurrer.
As to the statutory penalty for usury, it now asserts that, before a party can recover usurious interest, it is necessary that they plead the usurious contract, the payment of the usurious interest, the dates paid, to whom paid, and plead facts showing that the interest charged and collected exceeded 10 per cent, per annum.
*1103It appears from appellee’s petition that appellant had paid five payments under the contract; that is, according to their allegations, $56.25 as payment of fees, premiums, and other charges incident to the making of the loan and $84.40 as interest, making a total of $140.65. It also appears that $2,-204 was the amount alleged to be due on the note on July 29, 1931. This shows that there had been paid the sum of $46 on the principal between the 5th day of August, 1930, and the above date.
Giving every reasonable intendment to appellant’s pleading, she alleges that she paid in addition thereto $103, which would make a total of $243.65, or more than 10 per cent, on the principal sum the first year. It being taken as true that the amounts paid by her as fees were really for the use and detention of the sum loaned, under the mere guise of fees, these facts, we think show that more than lawful interest was received by appel-lee during the year between August 5, 1930, and August 5, 1931.
We think it also clear that the payments were made to appellee, and, while appellee fails to specify the dates such payments were made, she explains her inability to do so and calls upon appellee to produce its records as to such payments.
Another proposition advanced by ap-pellee is that we erred in holding that, because appellee’s petition showed that a part of the payments were to be.applied to the’ payment of stock, it made the contract usurious. Appellee, under this proposition, calls our attention to certain articles of the statutes relative to building and loan associations, and asserts that the scheme which we denounce is one expressly provided for in those articles.
As will be noted in the pleading quoted in the original opinion, appellant alleged that she was required to take out numerous shares of stock and to make payments on them, when it was never intended that she'should share any dividends as a stockholder or receive benefits thereby, but that, under the guise of paying for stock and shares and for her being a member, such payments were intended really for the use of the money and its detention.
These allegations must be taken as true, and, while it might develop on the trial of the case that she was to benefit by such stock payments as provided by the statutes cited by appellee, yet, in judging her pleading, we must accept her allegation that no benefit was to come to her by virtue of such payments.
Appellant, in paragraph 7 of her answer and cross-action, pleaded that appellee and Shannahan were working together; that Shannahan was aiding appellee to get loans, and that appellee, in turn, was requiring improvements to be made on the property on which it was making loans, and having Shan-nahan do the work ; that appellee, under the contract appellant was required to make with Shannahan, was to supervise the work and stop Shannahan whenever sufficient improvements had been made to meet its requirements.
These facts were sufficient to show that appellee had notice of the terms of the agreement between appellant and Shannahan and in fact show that it was a party to that agreement. We fail to see how appellee, under the allegations, could be a holder in due course of the Shannahan note as is insisted by it.
The motion for rehearing is overruled.