176 S.W. 863 | Tex. App. | 1915
Geo. P. Warner was engaged in the business of purchasing, cutting, and selling timber and ties, and was operating in conjunction with his brother, Wm. D. Warner. In the fall of 1909, Geo. P. Warner desired to cut, without interruption or hindrance, the timber off of the Atwood tract, and shortly prior to September 22, 1909, he was informed by Masterson that he claimed an interest in the land which Warner was then cutting over, and that, unless some arrangement was made between them, an injunction or some like process would be sued out. On the date last mentioned, Geo. P. Warner had a conversation with Masterson which resulted in them entering into a contract of that date; *864 the portions thereof material to a consideration of this appeal reading:
"That whereas said party of the first part has made and entered into a contract with the heirs of Charles Atwood, of New York, for the right to cut and dispose of all of the timber on that certain tract or parcel of land in the Adelia Yocum survey in Hardin county, Texas, known as the Atwood tract in said survey, which Atwood tract is described as follows: * * * And whereas, the party of the second part claims to own an undivided one-half (1/2) interest in said land. And whereas, the said party of the first part is desirous of proceeding with the cutting and marketing of the timber on said land, and in order to do so, without interruption or hindrance on the part of the said party of the second part, has agreed with said party of the second part as follows: That the party of the second part will acquiesce in and consent to the contract made and existing between the said party of the first part and the heirs of said Charles Atwood, so far as the right to cut and dispose of said timber is concerned. That the party of the first part will pay to the party of the second part, as hereinafter indicated, the price of seven dollars per acre for the acquiescence aforesaid to proceed with cutting the timber on said land under said contract with the Atwood heirs, andthe further consideration that in the event the said party of the secondpart is successful in the suit now pending in the United States Court inBeaumont for a one-half interest in said property that he will accept thesaid seven dollars per acre in full payment for his half interest in thetimber on said land. Said payments are to be made as follows, to wit: One hundred and forty-four and 66/100 ($144.66) dollars in sixty (60) days from date hereof, and one hundred and forty-four and 66/100 ($144.66) dollars each subsequent thirty (30) days thereafter until the full amountof seven dollars per acre for one-half of said timber shall have beenpaid, satisfied and discharged. Said payments to be evidenced by the vendor lien notes of the party of the first part, which notes, and themoney arising from payment of said notes, are to be placed in escrow inthe American National Bank of Austin, Texas, to be paid over to the saidMasterson at the termination of the litigation about said land, in theevent that he should establish his title thereto. In the event that heshould lose his title thereto, then said money and notes shall belong tothe said party of the first part, so far as the party of the second partis concerned, except as to the interest on said money, which is to be paid to H. Masterson every six months, at the rate of eight per cent. per annum from this date. The failure to pay any note as herein provided in the series of notes above mentioned shall, at the option of the said Masterson, terminate this contract and the right of the party of the first part to proceed in cutting said timber or the said party of the second part shall have the right to declare all of said notes due and payable their maturity dates on their faces to the contrary notwithstanding, and each and all of said notes are to be secured by a vendor's lien on one-half of the timber cut or sold or cut and sold off of said land. The right to sell said timber is not to be restricted by this instrument, except after notice by said party of the second part of the failure on the part of the party of the first part to comply with the terms and provisions of this agreement, after which notice it shall not be lawful for any more timber to be cut or sold off of said property. This contract is to be of two years duration from this date, and the party of the first part is to have no rights thereunder after that date."
The italics are ours. In this contract, Warner is referred to as first party and Masterson as second party. When it was entered into, the suit mentioned was then pending. A copy of this agreement and the notes therein provided for were deposited with the American National Bank. Up to April 2, 1910, Warner had paid the first five of said notes; the proceeds thereof being placed in the savings department of the bank as provided by the agreement. The American National Bank went into liquidation, and prior to January 9, 1911, was placed in the hands of Arch McDonald, as liquidating agent. On January 9, 1911, without the knowledge or consent of Warner, McDonald turned over to Masterson the remainder of the Warner notes and the cash which Warner had theretofore paid to the bank under said contract. On April 12, 1911, a final judgment was entered in the suit pending in the United States District Court, whereby the Atwood heirs, as plaintiffs, recovered a judgment against Masterson for title to and possession of the above-mentioned land. The judgment recited the parties announced in open court that they had agreed upon a settlement and adjustment of all matters in controversy between them in the cause, and the judgment was entered in accordance with their agreement. In accordance with the agreement, it was further decreed that the plaintiffs were to pay Masterson $1,500 in settlement of his claim to the land, and a lien to secure its payment was fixed upon the land. This sum was paid to Masterson when due and the lien released. The plaintiffs in said cause dismissed their suit for damages against Wm. D. and Geo. P. Warner, and they were discharged without day. Masterson never at any time interfered with or attempted in any way to prevent Geo. P. Warner from cutting the timber on the land.
This suit was brought by Geo. P. Warner against Masterson, the American National Bank, and its liquidating agent, McDonald, to recover the money paid by him under the contract between himself and Masterson, and to cancel the notes given thereunder, all of which had been turned over to Masterson as above stated.
From a judgment in Warner's favor, the defendants prosecute this appeal.
Appellants contend that the $7 per acre was to be paid to Masterson for his mere acquiescence and consent to the contract between Warner and the Atwood heirs, so far as concerned the right to cut and dispose of *865 the timber. There would be some force in this contention, were it not for the italicized portions of the contract, which clearly and beyond controversy show that the money was to be held in escrow by the bank and paid to Masterson for his interest in the timber if he was successful in the suit pending in the federal court; that it was to be paid over to Masterson at the termination of the litigation, in the event only he established his title to the land, and, if he was unsuccessful in the litigation, the money and notes were to belong to Warner. These provisions plainly establish that, upon the rendition of the judgment against Masterson for title and possession of the land, Warner became entitled to the money and notes. Argument can make the matter no plainer. This view of the meaning of the contract disposes of all questions presented under the first six assignments.
The eighth assignment reads:
"Said defendants except to the judgment rendered herein in that it is contrary to the law and the evidence."
This is so general that it cannot be considered.
Under the seventh assignment, Masterson complains of the allowance of an attorney's fee to his codefendants, the bank and McDonald, because it was not necessary for them to employ counsel to represent them in the case, as Masterson had guaranteed them against loss when the money and notes were delivered to him, and the counsel which they employed had been required to do nothing but merely file an answer. The force of these reasons is not apparent. The interests of Masterson were antagonistic to the bank and McDonald, and a judgment against him was rendered in their favor. The attorneys seem to have done enough to get this judgment. It seems very clear that these defendants needed an attorney to see that their rights were protected.
Affirmed.