First State Bank v. Keilman

In First State Bank v. Keilman, 851 S.W.2d 914 (Tex. App.--Austin 1993, writ denied), which concerned whether a bank charged unauthorized interest, the parties presented competing calculations; the bank contended that it had charged $ 169.92 in authorized interest, and the plaintiff contended that the bank had charged $ 7161.44 in unauthorized interest. Id. The jury found that the bank had charged $ 360 in unauthorized interest. Although the $ 360 award was within the range between the competing interest figures, the evidence was factually insufficient to support the award because there was inadequate support for a theory that would have resulted in a $ 360 figure. The evidence supported a choice of one figure or the other, not a verdict somewhere in the range between them. Id. In First State Bank v. Keilman, the parties' agreement stated that interest would be paid at the "prime rate . . . plus Two percent (12.5%)," but "12.5%" was crossed out and the number "2%" written in. First State Bank, 851 S.W.2d at 920. The court of appeals explained that "it is well settled that unambiguous written words prevail over arithmetic numbers in promissory notes." Id. Thus, even though handwritten or typed text ordinarily prevails over printed terms in an instrument, the alteration had no effect, as the written words would still control over the interpretation of the arithmetic numbers "12.5%" and "2%." Id. In First State Bank v. Keilman, in connection with a usury claim, the opposing parties provided conflicting methods for calculating the amount of unauthorized interest. See 851 S.W.2d at 929-30. The debtor claimed that the entire sum of $ 12,669.92 in a demand letter was interest, $ 7,161.44 of which was unauthorized ($ 5,508.48 was past due). The lender introduced evidence that the $ 12,669.92 figure consisted of $ 12,500 in principal and $ 169.92 in interest, none of which was unauthorized. See id. at 930. The jury found an amount in between those figures--$ 360. The Court concluded that the jury "pulled its answer out of a hat," and therefore, the evidence was factually insufficient to support the jury's finding. Id. at 931.