dissenting. The majority has premised its conclusion that the account involved in this action is not usurious in that “the interest charged did not exceed 10%. ” I submit that the majority’s position is misplaced. The question is not what interest was actually received by appellee, but, on the contrary, the pivotal question simply put: Is there an agreement authorizing the collection of an interest charge in excess of 10% per annum? The majority has avoided answering this question, as it must, in order to sustain its position.1
It is clear that the majority rejects the trial court’s holding that the transaction was a North Carolina one for, indeed, it was an Arkansas transaction and Arkansas law is applicable.
An invoice which was made a part of the record and which sheds light upon the transaction provides, in material part, as follows:
“Interest for October 1976 at 12% per annum or 1 % per month on all invoices more than 60 days old.”
Article 19, § 13, of the Ark. Const., in relevant part, is as follows:
“All contracts for a greater rate of interest than ten percent per annum shall be void as to principal and interest, ...”
The majority seeks to avoid the mandate of the Constitution by asserting:
“Since this is an open account and the total interest charged to the account by appellee was only $214.70, it follows that the trial court was correct in holding that appellee had not violated Arkansas’ prohibition against usury.”
But from the plain meaning of the constitutional provision, all contracts for a greater rate of interest than 10% per annum shall be void. In Wilson v. Whitworth, 197 Ark. 675, 125 S.W. 2d 112, we said:
“. . . if the lender alone charges or receives more than is lawful, the contract is void. ” (Emphasis added)
I would reverse the trial court and dismiss the action on the ground that the transaction is usurious; therefore, I dissent.
The trial court found that the transaction in question was a North Carolina arrangement. The trial court also found “12% penalty is legal in the state of North Carolina.”
Pertinent part of the trial court’s opinion is as follows:
“IT IS THEREFORE CONSIDERED by the Court that purchase and delivery was made in North Carolina (i.e., ‘your truck’); that possession of the goods was taken by the Defendant or his agent in North Carolina. That there has not been a violation of Arkansas’ prohibition of usury in excess of ten percent.”