On Rehearing.
We are in error in our conclusion that the judgment was not entered non obstante veredicto. The facts of the usury issue are sufficiently stated in the main opinion. On a careful review of appellants’ motion, it is reasonably apparent that they contend that the original $10,000 note did not “in good faith represent $10,-000.00 in actual money, paid by appellee to appellants,” but on the contrary that usury entered into the amount of the note. The pleadings and the evidence raised that issue, and it was found by the jury in appellants’ favor. On this statement the judgment of the court was non obstante veredicto, without the motion provided by Art. 2211.
The judgment of the lower court was also non obstante veredicto on the issue of fraud. The jury found that appellants executed to appellee the note and chattel mortgage in issue upon certain representations made to appellants by ap-pellee, and that these representations were made, in bad faith and without intent on appellee’s part to keep them; and found that, in executing the note and mortgage, appellants relied upon appellee’s representations, and would not have executed them but for appellee’s representations. These facts, as found by the jury, constitute fraud of a nature to defeat the note as extended, and the chattel mortgage. Stacy v. Ross, 27 Tex. 3, 84 Am.Dec. 604; Link v. Page, 72 Tex. 592, 10 S.W. 699, 701; King v. Wise, Tex.Com.App., 282 S.W. 570, 572; Rapid Transit Co. v. Smith, 98 Tex. 553, 555, 86 S.W. 322; Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W. 873; Prideaux v. Roark, Tex.Com.App., 291 S.W. 868; Trammell v. Swan, 25 Tex. 473, 498; Bankers’ Trust Co. v. Calhoun, Tex.Civ.App., 209 S.W. 826, 829; Johnson v. Johnson, 11 Mass. 359; Pomeroy’s Equitable Jurisprudence, Vol. 2, p. 1605, Sec. 899. In this connection we correct the statement in our original opinion that, on the ground of fraud, appellants sought to cancel the debt; and our legal conclusion that their “only relief was for special damages.” The relief prayed for by appellants was cancellation of the note and mortgage on the ground that their execution was induced by fraud.
We overrule appellants’ contention that judgment be here rendered in their favor. This was a simple action on a promissory note with prayer for foreclosure of a simple chattel mortgage. In defense, appellants plead “usury” and “fraud.” Their answer consumes 84 pages of the transcript. As accurately as we can estimate them, it required 183 special issues to submit to the jury the fact issues raised by the pleadings — on oral argument, counsel were not in agreement as to the exact number of special issues. The court’s charge consumes 38 pages of the transcript; the jury’s verdict — the answers to most of the questions being “Yes” — consumes 5½ pages of the transcript. The transcript was prepared on full length, legal size paper. From this interminable mass of facts we cannot, to our satisfaction, properly relate the amount of usury collected by appellee to the series of notes executed by appellants to appellee, totalling more than $538,000.
In our original opinion, we charged against the amount of appellee’s note the sum of $2,100.19. We are not satisfied, on the pleadings and the jury’s verdict as presented by this appeal, that appellee should be charged with this sum.
We overrule appellee’s motion for rehearing on the proposition that the term of court at which this case was tried was not lawfully extended. Without reciting the facts of the extension, we conclude that it was a literal compliance with the provisions of Art. 1923, Vernon’s Ann.Civ. St., as construed by this court in First State Bank of Tenaha v. Collinsworth, 111 S.W.2d 309, and the authorities therein cited.
It is our order that the judgment of the lower court be in all things reversed and remanded for a new trial, on all issues raised by the pleadings.
The opinion on rehearing heretofore filed in this cause is hereby withdrawn, and this opinion filed as our opinion on rehearing.