Page images
PDF
EPUB

chase and payment. The consideration pald by Ferguson for the note in suit is not specifically alleged. The allegation is simply that

"For a valuable and adequate consideration he (Ferguson) purchased from plaintiff Security National Bank the said original and renewal notes of $12,500,” etc.

was upon the implied promise arising out of the relation of the parties, and not upon the note upon which he and his coplaintiff, the Security National Bank, sued. The trial amendment filed by the defendants in error does not, in our opinion, alter the case. The allegations of that amendment, to the effect that it was not intended to extinguish the note sued on, but that the intention was at the The statement made by defendants in error time of the alleged purchase of the note by Ferguson from the bank to keep it alive for in their brief, that "the petition of plaintiff the benefit and protection of the rights of the shows upon its face that the only act done bank, etc., were ineffectual to show such in- by H. W. Ferguson in connection with an tention and understanding. This is true for adjustment of the note declared upon was to the reason that the allegations of the trial execute his own note to the bank, which not、 amendment of defendants in error were con- of Ferguson had not been paid and was past tradictory of and repugnant to the distinctly due at the time of the trial of the case ir alleged fact in the amended petition, of the court below," does not seem to be borne which the said trial amendment was a part; out by the record before us. It is alleged, in that Ferguson did "for a valuable and ade- effect, that on the same day Ferguson purquate consideration purchase the note; that chased the note sued on he secured a loan the bank indorsed it to him; and that he be- from the bank of $12,599, and executed his note therefor, and that he delivered the $12,came the owner thereof." Having, according to these allegations, purchased and paid off 500 note made by Smith and Kynerd and inthe note, the legal consequences resulting the bank, together with the $16,000 collateral dorsed by him, and which he purchased from therefrom are that the note was extinguished, and no suit could thereafter be maintained note, to the bank to secure the payment of his said note for $12,599 executed for the upon it, and that the only remedy of Fergu- loan he had obtained; but nowhere is it son, the surety, or the bank, if it had any expressly averred that the $12,599 note was remedy at all against the makers of said note, was upon the implied promise. The executed and delivered to take up the note sued on. On the contrary, it is alleged that allegations of the trial amendment were the $12,599 note was executed by Ferguson for doubtless ineffectual to keep the note sued the loan he had obtained from the bank. But on alive and furnish the defendants in error if it is a warranted inference from the allega cause of action upon it, for the additional ed practically contemporaneous transactions reason that the implied promise on the part that the note of $12,599 mentioned was the of the principal obligors in the note to re- consideration for the alleged purchase of imburse the surety in the event he paid the the note sued on, or whatever may have been note was raised by the law at the time the the consideration for the purchase by Fergucontract of suretyship was made, and there is son of the note indorsed by him and sued on no allegation that this legal obligation, by in this action, it is manifest from the pleadan understanding of all the parties to the ings that the bank was satisfied with it, and transaction at that time, was set aside or indorsed without recourse and delivered to limited, and that, in the event Ferguson Ferguson the $12,500 note. The allegations paid off the note or became the purchaser of the amended petition show that Ferguson thereof, the note should be assigned to him for a valuable and adequate consideration with all the rights of the original payee to purchased the note, and it appears from the sue thereon and enforce it according to its trial amendment of the defendants in error terms. The allegations are, as we under- that "said note was indorsed by the Security stand them, to the effect that it was National Bank to H. W. Ferguson without the understanding and intention of H. recourse." The allegations show that the W. Ferguson and the Security National bank was satisfied, and that the debt due Bank, at the time it is alleged that Fergu-it by Smith and Kynerd as principal obligors son purchased the note sued on, and that of Smith and Kynerd, the principal obligors, that the note should not be extinguished, but assigned to Ferguson as the owner thereof, and kept alive for the protection of the bank, etc. The status and legal rights of the parties, as we understand the law, were fixed at the time the note was executed and indorsed by H. W. Ferguson, and that no agreement or intention of Ferguson, the surety, and the bank, the payee, at the time surety purchased the note and paid it off, could change those rights or the legal consequences which would otherwise result from such pur

and Ferguson as surety was discharged. This being true, neither Ferguson nor the bank had any cause of action upon it. It seems that the implied promise of Smith and Kynerd to reimburse Ferguson for paying off the note is not the subject of assignment (Holliman v. Rogers, supra); but, if it is, there is no allegation of such assignment. The only theory upon which the bank sought to recover was that the note sued on had not been extinguished. So that if it should be conceded that Ferguson's cause of action was subject to assignment, yet in this state of the pleadings, since we hold that the note

was extinguished by the purchase and payment of Ferguson, It does not appear that the bank would have any right of recovery whatever upon the implied promise.

Action by Ben F. Harless against Mrs. J. D. Richardson and another, begun in justice court and appealed by defendants to the county court, and, from a judgment there for plaintiff, defendants bring error. Affirmed.

Gordon Bullitt, of San Antonio, for plaintiffs in error.

R. H. Ward, of San Antonio, for defendant in error.

[3] The substance of the fourth and last assignment of error is that the trial court erred in rendering judgment in favor of the plaintiff H. W. Ferguson for $406.40, because that court was without jurisdiction of said amount. Ferguson claimed, as we have shown, that when the $12,500 note indorsed by him matured he was compelled to pay the interest demanded in order to secure an exMOURSUND, J. Defendant in error sued tension, amounting to $167.50, and in addi- plaintiffs in error in justice's court of Harris tion thereto was compelled to pay on an in- county, and upon the sustaining of a plea of stallment of interest which had matured on privilege the cause was transferred to the the collateral note of $16,000, $269.40, to pre-justice's court, precinct No. 1, of Bexar counserve that security, and prayed separately ty. From a judgment in favor of plaintiffs for judgment in his favor for the aggregate in error, an appeal was taken by defendant of these two amounts. Ferguson having no in error, and judgment rendered in his favor right of action on the note sued on, and the in the county court. Defendant in error sued amount of the interest alleged to have been to recover a diamond ring or $115, its value, paid being less than $500, we think this as- shipped by him to plaintiff in error Mrs. J. signment is well taken. D. Richardson. Plaintiffs in error's answer, in so far as it is material to the assignments of error, was to the effect that Mrs. Richardson was not indebted to defendant in error in any amount; that the diamond ring was fully paid for by a chance purchase by her in a certain box sale, known and designated by defendant in error as the "Harless 2nd Diamond Box Sale," which was at that time carried on by defendant in error; that she paid the full amount of $5 demanded by defendant in error; that he accepted the same; and that the box containing the diamond ring was expressed to her in pursuance of said chance so purchased by her. They further alleged that said purchase and contract of purchase, and sale, was a lottery and chance agreement, and violated the statutory law of Texas, and that the contractual acts of defendant in error were therefore void.

The note sued on having been paid off and extinguished, and the allegations of the trial amendment not alleging facts showing a cause of action in either of the defendants in error on the note sued on, but the facts alleged in said trial amendment being contradictory and repugnant to the allegations of the petition, of which it is made a part, the whole petition was obnoxious to the demurrers urged by plaintiff in error, and said demurrers should have been sustained. Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; McCavick v. McBride, 189 S. W. 795; Rowe v. Horton, 65 Tex. 89; Barry v. Screwmen's Ass'n, 67 Tex. 250, 3 S. W. 261; Steinback v. City of Galveston, 41 S. W. 823.

It follows from the conclusions reached that it is our duty to reverse the judgment of the district court, and as, in our opinion, the case should have been disposed of on plaintiff in error's demurrers, with the right of defendants in error to amend, the case will be remanded.

Judgment reversed, and cause remanded.

RICHARDSON et al. v. HARLESS. (No. 6088.)

Defendant in error replied to this pleading with a general denial.

The evidence discloses that in the Houston Post of June 5, 1914, defendant in error inserted an advertisement, of "Harless 2nd Diamond Box Sale," stating in substance that boxes would contain articles that are regular $5 values, in addition to scores of other articles worth up to $395, many of which were enumerated. Mrs. Richardson, on June 5, 1914, sent defendant in error a money order for $5 for "one of Harless 2nd Diamond Box sale" Saturday June oth. She

(Court of Civil Appeals of Texas. San Anto-stated that he should send contents of dianio. Nov. 13, 1918. Rehearing De

nied Dec. 11, 1918.)

APPEAL AND ERROR

JUDGMENT.

931(1)

REVIEW

[ocr errors]

mond box by "sealed express," and that, "You may return money order if your sales are not made by mail." Defendant in error received this letter and expressed to Mrs. testi-Richardson a diamond ring, writing her that he was shipping her the ring on approval, and that he would make her a special Error from Bexar County Court; John H. price on same of $115; that he thought it Clark, Judge. was as fine a stone as the one he sold her

In deference to the trial court, the mony of the successful party should be accepted as true by the appellate court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(Court of Civil Appeals of Texas.

Nov. 27, 1918.)

Austin.

1. APPEAL AND ERROR 555-MATTERS REVIEWABLE-OBJECTION.

Where the record shows that appellants objected to the court's charge, and the authentication of the judge shows that these objec tions were presented and overruled, and that appellants excepted to the action of the court before the charge was read to the jury, an asof exceptions was stricken out by order of this signment is sufficient, although the formal bill court.

in San Antonio. He received no reply, and on June 15th wrote her again. On June THOMAS et al. v. DERRICK. (No. 5972.) 16th, he sent her a draft for $5, and asked that the ring be returned by return mail. On the same day he talked to her over the telephone and asked her what she was going to do about the ring. She said that she did not know whether she would return it or pay for it; that her husband was going to Galveston in a few days and would come by and see about it. The draft was returned in a letter by Mrs. Richardson. On June 24th, defendant in error wrote Mr. Richardson, asking for the ring or the money, and stating that he had made the price very plain when he shipped the ring. Finally, Mrs. Richardson told him she intended to keep the ring; that she had paid for it. Defendant in error testified the box sale was declared off, after the chief of police had notified him it would constitute a violation of law, and that he did not ship the ring to Mrs. Richardson in pursuance of the advertisement, but shipped it on approval. Mrs. Richardson testified she did not receive the letter of June 6th, but received those dated June 15th and 16th.

Plaintiffs in error contend: (1) That the evidence conclusively shows a completed contract of sale to Mrs. Richardson of the ring for $5; (2) that the ring was sent pursuant to a "lottery or chance" transaction, in violation of law, and that he cannot take advantage of his violation of the law, and there fore is not entitled to recover.

2. APPEAL AND ERROR 742(1)

REVIEWABLE
PROPOSITION.

-

MATTERS

ASSIGNMENTS OF ERROR

confined to a statement of the pleadings and A statement under a proposition, which is the issues sought to be raised, and does not undertake to set out the substance of the evidence bearing on the proposition, is insufficient. 3. BILLS AND NOTES 537(1)—EXTENSION—

EVIDENCE.

Telephoning to holder of note regarding extension, and failure of holder to keep promise then made to meet maker, did not even raise a question for the jury on the issue as to whether there was agreement for extension. 4. TENDER 7-ACTION ON NOTE.

A tender by the maker to the payee of a note does not constitute a tender as to the holder of the note, where the maker knows that the payee no longer has any authority in the matter.

5. APPEAL AND ERROR 555-MATTERS REVIEWABLE "EXCEPTION"-SUFFICIENCY. Where the formal exception was stricken

charge was presented to the court and refused, and that defendant excepted, as shown by the indorsement of the judge on the special charge, the notation and authentication are insufficient to constitute an "exception" under the statute. and Phrases, First and Second Series, Excep[Ed. Note.-For other definitions, see Words tion.]

Appeal from District Court, McLennan County; Geo. N. Denton, Judge.

Taking defendant in error's testimony to be true, which must be done in deference to the judgment of the trial court, it appears that he did not accept the $5 in payment of a box in the lottery, if it was a lottery; that in fact the box sale scheme had been aban-out, and the transcript only showed that a doned. Even if her letter be considered as an acceptance of his advertised offer, and as making a contract for a box in the sale, the fact that he failed to comply with such contract would not authorize a judgment depriving him of property he offered to sell her at a certain price. If the scheme was unlawful, as contended by plaintiffs in error, they would be unable to enforce the compliance of defendant in error with his offer to send a box. The minds of the parties never met on a contract by which defendant in error was to sell Mrs. Richardson the diamond ring in question for $5. The ring was sent to her on approval at a price of $115, which is not strange in view of statements in her letter concerning a former purchase of a diamond ring from him. She declined to pay the price, but refused to return the ring. Defendant in error did not send the ring pursuant to any sale conducted on the lottery plan, nor does he rely upon any such sale to recover. It therefore appears there is no merit in either of the contentions made by plaintiffs in error. Judgment affirmed.

Action by B. H. Derrick against Webb Thomas and others. Judgment for plaintiff, and defendants Thomas and Friedsam appeal. Affirmed.

G. W. Barcus and Alva Bryan, both of Waco, for appellants.

W. L. Eason, of Waco, for appellee.

BRADY, J. Appellee, B. H. Derrick, instituted this suit against appellants, Webb Thomas and I. W. Friedsam, and one T. O. Westbrook, alleging that by general warranty deed, dated February 11, 1915, John F. Rowe conveyed to Westbrook a certain tract of land in McLennan county, Tex., and that as a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

part of the consideration for the said con- the bills, but overruled the motion as to the veyance Westbrook executed to Rowe six assignments of error. negotiable promissory notes of same date as Appellants' first assignment of error comthe deed, and due on or before November 1, plains of the court's action in peremptorily 1916, 1917, 1918, 1919, 1920, and 1921, re-instructing the jury to return a verdict for spectively. The notes bore interest from date at the rate of 8 per cent. per annum, and provided for 10 per cent. attorney's fees; also containing a clause that the failure to pay any one of said notes, or any installment of interest, should, at the election of the holder, mature all of the notes. The first three notes were for $200 each, the fourth and fifth for $250 each, and the sixth for $240. The vendor's lien was retained in the deed and in the notes to secure the payment of same.

[ocr errors]

plaintiff, because defendants had pleaded an extension agreement with Rowe, who, it is claimed in said assignment, was admittedly the agent of appellee, Derrick, and also because it was pleaded that appellants had made a tender to Rowe of the amount of the first note prior to the institution of the suit, or the placing of the notes in the hands of an attorney for collection. The assignment contends that the testimony made these defenses issues of fact, which appellants were entitled to have the jury pass upon, and that it was error to take these issues from the jury by the peremptory instruction.

Appellee objects to the consideration of this assignment of error, because the specific objections to the court's charge were embodied in a formal bill of exception, which bill was stricken out by the order of this court heretofore referred to. Appellee further objects to the consideration of said as

The petition alleged that prior to November 1, 1916, the maturity date of the first note, John F. Rowe, the payee, sold, indorsed, and delivered all of said notes to the plaintiff, Derrick, who at the date of the filing of the petition was the owner and holder of the notes and lien securing same. The petition further alleged that in March, 1915, Westbrook and wife conveyed the land to Friedsam and Thomas, who assumed pay-signment because of the alleged insufficiency ment of the notes and agreed to pay the of the statement under appellants' first propsame. Plaintiff further alleged that, at the osition. maturity of the first note, defendants haying failed and refused to pay the same, he exercised the option to mature all of the notes, and demanded payment. It was alleged that the notes were placed in the hands of an attorney, W. L. Eason, for collection, and that plaintiff was entitled to recover the attorney's fees specified.

Westbrook made no defense, but Friedsam and Thomas pleaded a general denial, and also that John F. Rowe was the owner and holder of the notes in suit, and that he had extended the time of payment of the first note; that before the expiration of the extension period said defendants tendered to Rowe the amount due on the first note, together with interest. Said defendants claimed that thereby plaintiff was not entitled to declare all of the notes due; that no attorney's fees had accrued, and no interest after the alleged tender; and they asked for judgment over against Rowe, in event they should be held liable to plaintiff. No service was had on Rowe, and he was dismissed from the suit.

[1] An inspection of the record shows that appellants objected to the court's charge in peremptorily instructing a verdict for plaintiff, substantially as set forth in said assignment, and the authentication of the judge shows that these objections were presented and overruled, and that appellants excepted to the action of the court before the charge was read to the jury. We consider this a substantial compliance with the statute, and that the assignment is sufficient, independently of the formal bill of exception, which was taken, but stricken out by order of this court. Under the authority of Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184, we hold that no formal bill of exception was necessary, and that the exception above indicated was sufficient to entitle the objections to be considered on appeal. Therefore the appellee's first objection to said assignment is overruled.

[2] As to the second objection to this assignment, the statement under appellants' first proposition is doubtless deficient, in that it seems to be confined to a statement of the The court instructed the jury to return a pleadings of defendants and the issues sought verdict for plaintiff against all of the de- to be raised, and apparently does not underfendants for the amount due on all of the take to set out the substance of the evidence notes, with interest and attorney's fees, and bearing on the proposition. However, the for foreclosure of the vendor's lien, and ver-statement of facts is not at all voluminous, dict and judgment were rendered according- and, in view of the disposition we shall make ly. Upon motion of the appellee, filed in of this case, we have decided to overrule the this court, to strike out all of appellants' second objection also, and to consider the bills of exception and all assignments of assignment. error, this court sustained so much of the motion as related to the bills of exception, and ordered stricken from the record all

If it should appear from the record in this case that the pleadings and evidence show a valid extension agreement between appel.

lants and appellee, and that before the expiration of the extension period appellants made a legal and sufficient tender to appellee of the amount due upon the first note in controversy, or if an issue of fact was raised by the evidence upon these defenses, it is obvious that the trial court erred in taking the case away from the jury and in peremptorily instructing for the plaintiff. Hence it becomes material to consider what issues were made by the pleadings, and what were the facts proven upon the trial.

to Mr. Derrick; but he denied that Mr. Derrick had agreed to come to his (Rowe's) office to discuss the matter. He further testified that Mr. Thomas on one occasion did speak to him about trying to get him to carry the note for him for about 10 days, but that he informed Mr. Thomas that the notes belonged to Mr. Derrick and that he had no rights in the matter at all.

The testimony of both Derrick and Rowe wholly fails to show any agreement to extend the notes, or any of them, and is insufficient to even raise an issue upon that question. The testimony of Mr. Rowe shows that appellant Thomas, after he left the office of Rowe on November 8th, undertook to tender Rowe some money, presumably the amount of the first note, which he refused to receive, assigning as his reason that it look

titude of settling the difference between himself and Derrick.

First, it should be stated that the claimed agency of John F. Rowe in making the alleged extension agreement was not an issue in the case, because appellants did not plead that Rowe made an extension agreement as agent for the appellee, Derrick; but their answer alleged that the agreement was made with Rowe alone, and that Rowe was him-ed like Thomas wished to put him in the atself the owner and holder of the notes at the time of the alleged agreement and tender. Upon the trial, appellee, B. H. Derrick, tes- Appellant Thomas testified as a witness tified that he never at any time agreed to an in his own behalf. He stated that prior to extension of any of the notes in controver- November 1, 1916, he had received no notisy; that he never even promised to meet fication with reference to the notes, but that Mr. Thomas and to discuss the question of on November 6th he called on Mr. Rowe, extension with him. In this he is supported who refused to accept the interest, and wantby the testimony of John F. Rowe. Mr. Der-ed him to take it up with Mr. Derrick; that rick further testified that he acquired and he called at the bank to pay the notes on became the owner of all the notes early in November 7th, but that that day was a hol1916, not later than March, and this testi-iday, and he could not get into the bank; mony is undisputed. He further testified, without contradiction, that the notes were turned over by him to Mr. W. L. Eason, an attorney, for collection, on November 7, 1916, and it is also an undisputed fact that he had agreed to pay Mr. Eason the attorney's fees provided in the notes. Mr. Derrick further testified that Mr. Rowe did not inform him that he had made any agreement with Mr. Thomas to extend the notes or interest for a few days, and he denied that a tender of any part of the notes was ever made to him by Thomas.

The evidence shows that a notice was sent to appellant Friedsam by the Central Texas Exchange National Bank, dated October 31, 1916, notifying him that the first note would be due November 1, 1916, and requesting attention. Appellant Thomas admitted that he had knowledge of this notice prior to the time that he claimed to have had the alleged extension agreement with Mr. Rowe.

It was also an undisputed fact that on November 8, 1916, W. L. Eason, attorney for appellee, notified appellants, and also T. O. Westbrook, by letter that he held for collection, for account of B. F. Derrick, the owner, the notes in controversy, and also notified them that Mr. Derrick had exercised the option of declaring all the notes due, because of nonpayment of the first.

John F. Rowe testified to the visit of Mr. Thomas to his office on November 8, 1916, and to the request of Mr. Thomas to talk

that the following day he was informed by the bank that Mr. Rowe had the notes, and he went to see Rowe about them; that this was the occasion when he had the conversation over the telephone with Mr. Derrick, and when he claimed that Derrick promised to come down to Rowe's office to see him. He admitted that while he was in Mr. Rowe's office on November 8th, waiting for Mr. Derrick, he knew that the notes were in Mr. Eason's hands for collection, and that Mr. Eason's office adjoined Mr. Rowe's office, but that he never went to Mr. Eason's office to see about the notes, nor did he make any attempt to tender the amount of any of the notes to Mr. Eason; that about November 14th or 15th he received the letter of Mr. Eason, demanding payment and advising that all the notes had been declared due, but that he did not thereafter communicate with said attorney. He testified that he offered to pay Mr. Derrick over the telephone from Mr. Rowe's office, and that Mr. Derrick promised to come down, but that he never came.

These are the only witnesses who testified at the trial, and the above are substantially all the facts bearing upon the issues. We have carefully examined the statement of facts, and especially the testimony of appellant Thomas, and we do not find that he ever testified to any extension agreement made with appellee, Derrick; and he testified to no facts which would, in our opinion, raise that issue. Neither do the facts show any agreement to extend the notes

« EelmineJätka »