As counsel suggests, our first conclusion of fact in this case is probably erroneous in stating that the firm of George Co. was composed of George Roller and Susan Tucker. The petition is misleading in this allegation, but by a closer reading of it, it would seem that it alleged that the former composed the firm. The finding one way or the other is not material. Our second conclusion of fact is correct, as from the testimony of George Roller himself, who stated that he got only $350, and the other $50 was retained by Coffin as interest, and that the $10 attorney's fee was by agreement paid by Coffin out of the $50 kept back at the time the note was executed.
Appellants contend, that as Roller received only $350 it would be error to allow the contract rate of interest (12 per cent) from maturity on the entire $400. The transaction as it appears to us is virtually the same as if Roller had paid $40 interest to Coffin and $10 to the attorney. The original contract was not usurious in calling for $400, with 12 per cent from maturity.
The motion is overruled.
Motion overruled.