#### JESSIE HENDRIX v. HARRY’S CADILLAC COMPANY, INC., and GENERAL MOTORS ACCEPTANCE CORPORATION.

(Filed 24 September, 1941.)

Usury § 2—

An action to recover alleged usurious interest paid cannot be maintained upon evidence disclosing that the transaction alleged was not a loan but was a sale with deferred payment secured by conditional sale contract. C. S., 2306.

Appeal by plaintiff from Johnston, Special Judge, at April Term, 1941, of BuNCOMbe.

Geo. F. Meadows for plaintiff, appellant.

Chas. G. Lee, Jr., and James S. Howell for defendants, appellees.

Pee Oueiam.

This is an action under C. S., 2306, to recover an amount of alleged usurious interest paid by the plaintiff to the defendants in a transaction involving the purchase and sale of a second-hand automobile, with deferred payments secured by conditional sale contract.

An examination of the evidence convinces us that the transaction involved was indeed a sale and not a loan, and therefore the cause of action alleged by the plaintiff is not sustained by the evidence. Note, 48 A. L. R., p. 1442; 57 A. L. R., p. 880; 91 A. L. R., p. 1105.

The judgment of the Superior Court is

Affirmed.