From the record before us, it is evident that this case was tried upon an erroneous theory of the law, resulting in the rendition by the trial court of a judgment in favor of plaintiffs and against defendant to the effect that the notes in question were potentially usurious. This judgment was erroneous because, as stated in the original opinion of this court on this appeal, there was no evidence in the record on which the trial court could correctly predicate a finding as to the value of the notes or that a basis of assessment thereof for the purpose of taxation had been shown. However, it is apparent from the trial court's findings that the latter was of the opinion that the basis of assessment for taxes of the notes under attack had been established by the introduction in evidence of these notes, together with the presumption (1) that such notes, in the absence of proof to the contrary, were worth the amount of their face value, and (2) the further presumption that if the occasion should arise, the assessor of taxes would assess the same as credits for the full value of the same so payable, as provided by Article 7174, R.C.S. In reaching these conclusions, it is apparent that the trial court (as well as plaintiffs' attorney) misinterpreted the rules of law applicable to the facts of this case as laid down by this court and the Supreme Court on prior appeals. See Duvall v. Kansas City Life Ins. Co.,96 S.W.2d 793; Id., 104 S.W.2d 10; Kansas City Life Ins. Co. v. Duvall,129 Tex. 287, 104 S.W.2d 11; Id., 129 S.W.2d 770. This misunderstanding of the meaning of and effect to be given to the opinions above cited caused the trial court to render an erroneous judgment, and was likewise the cause of plaintiffs' case not being fully developed.
I cannot say that plaintiffs can not and will not, if given the opportunity, produce on another trial legal evidence sufficient to discharge the burden imposed upon them by law. It seems to me that plaintiffs' cause of action should not be foreclosed by a rendition of the judgment, but the ends of justice would be best served by affording plaintiffs another opportunity to establish by competent evidence their allegations of usury, aided by and in conformity with the applicable rules of law announced by the above cited authorities, and by this court in its original opinion in this appeal.
These conclusions, arrived at after a careful search of the record in this appeal, and in the second appeal of this case, are, I believe, supported by the case of Richards v. Rule, Tex.Com.App., 207 S.W. 912, 914, wherein Judge Taylor said: "The purpose of the litigation is to correctly determine the issues raised, and, while a speedy disposition of the case is desirable, the number of times it has been tried should not be given any weight in its decision under the circumstances disclosed by the record, and so long as the vital issue is in doubt." Further support is found in the case of Paris G. N. Ry. Co. v. Robinson,104 Tex. 482, 140 S.W. 434, 439, wherein Judge Dibrell said: "* * * as long as there is a probability that a case has for any reason not been fully developed, this court will not render judgment on the insufficiency of the evidence. In other words, it must be apparent to the court that the case has been fully developed, and that there is no probability that any other evidence can be secured before it will render judgment."
For the reasons expressed, I cannot agree to the disposition of this cause as made in the majority opinion of this court on rehearing. *Page 572