Appellee, W. W. Oskey, sued appellant, A. J. Campbell, in El Paso county court at law, alleging that on or about March 13,1920, he borrowed $750 from Campbell, which he subsequently repaid with usurious interest amounting to $300,' by reason of which he, said defendant, was indebted to him in the sum of $600, for which he asked judgment.
Defendant replied by general demurrer and general denial.
At the close of the testimony the trial judge peremptorily instructed the jury to return a verdict in favor of plaintiff for. the full amount sued for, and, based on such directed verdict, judgment was rendered against defendant for $600.
The assignment is that it was reversible error to give a peremptory charge, and the proposition is:
“Proposition I. The plaintiff’s right to recovery herein depended on whether the sum of $300 which he had paid to defendant in addition to $750 originally furnished by defendant was in fact paid as usurious interest or as a part of the profits derived, or to be derived, from a joint enterprise in the sale of certain jewelry which had been theretofore pledged by a third person and redeemed as a speculation by plaintiff with the $750 advanced by defendant. There was a sharp conflict in the testimony on this, the crucial point in the case, and it was error for the trial judge to invade the province of the jury as triers of fact and peremptorily direct them to return a verdict in favor of plaintiff against defendant.”
This proposition is well taken. The undisputed evidence is that the $750 was used to purchase jewelry of the value of $1,800 or more.
The plaintiff testified that it was a loan to him at 10 per cent, per month for 60 days, but defendant testified that interest was not mentioned, but that he was to have $300 of the profits to be derived from the purchase. There are statements in the record by the latter and a letter written by him that indicate that the transaction was simply a loan at usurious interest, but another witness, shown to be disinterested, testified clearly that he overheard the conversation between the parties, and that the proposition was that the $300 was to be defendant’s share of the profits for advancing the money. So clearly it was a question for the jury to determine from the credibility of the witnesses and the weight to be given to their testimony.
Reversed and remanded.
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