On Motion for Rehearing.
In our former opinion we refused to consider appellant’s four assignments which had not been filed in the lower court and did not appear in the transcript.
We based our holding on the decision in Henderson et al. v. Odessa Bldg. & Finance Co. (Tex. Com. App.) 27 S.W.(2d) 144, but after a more careful study o'f the question we have concluded that we were in error in such refusal. Gulf Manufacturing & Lumber Co. v. Newton (Tex. Civ. App.) 27 S.W.(2d) 873; Johnson v. Poteet (Tex. Civ. App.) 279 S. W. 902 (writ refused); Moody v. Bonham (Tex. Civ. App.) 178 S. W. 1020 (writ refused); Busbee v. Busbee (Tex. Civ. App.) 231 S. W. 441; 3 Tex. Jur. p. 832.
.[6] Those assignments do not question the finding of the court that Kinney-Shotts had no notice of any usury having been charged in the note. It may be conceded that usury was included in the note, but such fact does not appear on the face of the note, and therefore the burden was upon appellant to bring home to them knowledge of the fact that it was so charged, and until he had discharged that burden he could not recover the penalty from them.
Still being of the opinion that the judgment was correct, the motion for rehearing is overruled.