Page:Hare v. General Contract Purchase Corp., 220 Ark. 601 (1952).pdf/7

Rh. Therefore, insofar as the case at bar is concerned, it must be affirmed on the strength of our previous holdings.

IV. Caveat. But the time has come when we must reëxamine these holdings, so we now give the public a caveat that the effect of transactions, such as in the case at bar, may impinge on the constitutional mandate against usury, and transactions entered into after this appeal becomes final, may be subjected to the taint of usury with the aforementioned decisions affording no protection. Illustrative of our earlier holdings in this regard, we call attention to two cases. In Ford v. Hancock, 36 Ark. 248, there had been a credit sale of chattels, with a note and mortgage to secure the seller. The buyer pleaded usury in the sale, and that plea was successful. This Court said:

"It is not usury for one who sells a piece of property on credit, to contract for a higher price than he would have sold it at for cash. If the intention be, in fact, to sell on credit, he has the right to fix a price greater than the cash price, with legal interest added; but if the sale be really made on a cash estimate, and time be given to pay the same, and an amount is assumed to be paid greater than the cash price, with legal interest, would amount to, this is an agreement for forbearance that is usurious. Therefore, where the intention is not apparent, it is a question for the jury to determine, whether it was a bona fide credit sale, or a device to cover usury. Tyler on Usury, 92."

Likewise, in Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516, the Court used pertinent language. Cleveland sought to borrow $270 from Tillar in order to buy some