dissenting. I respectfully dissent, because I think the court is departing from its previous position on summary judgments. I do not believe that the summary judgment procedure has been properly utilized in this case. This very wholesome process for eliminating claims and defenses without merit and thus expediting the disposition of litigation was not intended to be a vehicle for bypassing jury trials or for early prediction of the outcome of litigation, however obvious it might seem. We have always been very strict in resolving every doubt, against a summary judgment. See, e. g., Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89; Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646; Deam v. O. L. Puryear & Sons, Inc., 244 Ark. 18, 423 S. W. 2d 554.
I cannot subscribe to the very cursory manner in which two written documents have been held to be something other than what they appear to be. This court has always unhesitatingly looked behind the “covering” to “extract the kernel” in removing the shielding cloak from any usurious transaction. Our zeal in doing so has not caused us to depart from the rules in such cases however, that the burden is upon one asserting usury to show that the transaction is usurious, and that usury will not be presumed, imputed or inferred when the opposite conclusion can reasonably and fairly be reached. Geyer v. First Arkansas Development Co., 245 Ark. 694, 434 S. W. 2d 301; Peoples Loan & Investment Co. v. Booth, 245 Ark. 146, 431 S. W. 2d 472. Where usury is pleaded, it must be established by clear and convincing evidence and not by a mere preponderance where written instruments are alleged to be something other than that which they appear to be. Baxter v. Jackson, 193 Ark. 996, 104 S. W. 2d 202; Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S. W. 2d 1009.
Appellee seeks to meet Ms burden to demonstrate the want of a genuine issue as to any material fact by his own affidavit only. The content of that affidavit is not sufficient to require appellants to remove the shielding cloak of formal allegations to demonstrate the existence of a material issue. Appellee’s allegation, that the bill of sale and option to repurchase were, in effect, only a pawn-loan agreement, was denied. The bill of sale and option were brought into the record as exhibits to appellants’ request for admissions. In Ms affidavit appellee admits the execution of the bill of sale and his retention of an option to repurchase the diamond ring. The only statement which would tend to show that the transaction was something other than what it appeared on its face to be was: “I understood the entire transaction to be a pawn-loan agreement.” This sentence was insufficient to support the summary judgment for many reasons.
In the first place, appellee’s own understanding of the transaction would not show that it was usurious. There must be an intention upon the part of the “lender” to take or receive more than the legal rate of interest, or an agreement between the parties by which the borrower promises to pay and the lender knowingly- receives a higher rate of interest than the constitution allows. Peoples Loan & Investment Company v. Booth, 245 Ark. 146, 431 S. W. 2d 472; Cammack v. Runyan Creamery, 175 Ark. 601, 299 S. W. 1023; Briant v. Carl-Lee Brothers, 158 Ark. 62, 249 S. W. 577. Sweetser’s understanding of the transaction would not tend to convert the transaction into an agreement by appellants to receive an excessive rate of interest or an intention by them to exact such interest.
The statement would not have been admissible in evidence as required by statute. Ark. Stat. Ann. 29-211(e) (Supp. 1967). A witness may not testify whether he understood from that which took place between him and another that they assumed a certain contractual relationship, but must state only the facts as to what occurred, not his conclusions. Bercher v. Gunter, 95 Ark. 155, 128 S. W. 1036.
A supporting affidavit is sufficient only when the facts stated therein clearly demonstrate that there is no issue of fact. It cannot consist of statements of legal conclusions and ultimate facts.1 Walling v. Fairmont Creamery Co., 139 F. 2d 318 (8th Cir. 1943); Engelhard Industries, Inc. v. Research Instrumental Corp., 324 F. 2d 347 (9th Cir. 1963); Doff v. Brunswick Corp., 372 F. 2d 801 (9th Cir. 1967), cert. denied, 389 U. S. 820, 88 S. Ct. 39, 19 L. Ed. 2d 71 (1967); 6 Moore’s Federal Practice 2808, § 56.22 [1], Supporting affidavits must be subjected to close scrutiny and any doubts resolved against the moving party. Walling v. Fairmont Creamery Co., supra; Seman v. Mumford, 335 F. 2d 704 (D. C. Cir. 1964); Bryan v. Aetna Casualty & Surety Co., 381 F. 2d 872 (8th Cir. 1967); 6 Moore’s Federal Practice p. 2338, § 56.15 [3], p. 2853, § 56.23.
When the rules relating to summary judgment are applied in this case, I cannot see how it can be said that the appellee met his burden. The case of Sparks v. Robinson, 66 Ark. 460, 51 S. W. 460, relied upon by appellee and the majority opinion, does not support summary judgment in this case. In that case the borrower testified that she borrowed $8.00 and understood at the time that she was to pay 80c per month for the use of it. She left a sewing machine with the lender for the sole purpose of borrowing this money. The parties executed an absolute bill of sale for the sewing machine. By an endorsement on this ticket, the borrower was given the privilege of purchasing any article of merchandise in the lender’s place of business at a price not to exceed 10 percent above its actual cost, within 30 days, with the sewing machine at the price of $8.00 preferred. The proof showed that, at the end of each month, 80c was collected and another sales ticket issued granting the same privilege. The lender did not really contradict this evidence that the transaction involved a loan. He testified that he made no contracts for interest on his loans and trusted to a man’s honor what he should pay for the use of money, but that he expected something. In that case there was evidence to support the court’s finding that the transaction was a loan of money at an interest rate of 10 percent per month. The court said that the extraneous proof warranted the conclusion that the instrument called bill of sale and sales ticket was intended as a mortgage.
The court’s findings in the Sparks case were based upon evidence offered upon a contested issue of fact. The borrower there offered testimony as to what took place between the parties and did not let the case rest upon her own conclusional statement that she understood the transaction to be a pawn-loan agreement. It may well be that the transaction here is identical with that in the Sparks case, but I do not see how it can be held to be upon the record before the court. I would reverse the summary judgment.
Jones, J., joins in this dissent.For example, an affiant cannot be permitted to state that a party operated as an independent contractor and was engaged in the production of goods for commerce where these were the ultimate facts in issue. Creel v. Lone Star Defense Corporation, 171 F. 2d 964 (5th Cir. 1949). Here the ultimate fact to be determined was whether the transaction was a pawn-loan agreement.