197 S.W. 478 | Tex. App. | 1917
Lead Opinion
If prior to the submission of this case the appellee indicates a desire to have its submission postponed in order that it may take proper proceedings in the court below to perfect the record, we will postpone the submission of the cause for that purpose; otherwise the motion to strike out the statement of facts will be overruled.
Addendum
Appellants insist first that the court erred in overruling their plea of privilege. The notes sued upon provide that they are payable at the Western National Bank at Hereford, Tex., and "if not paid when due, to become payable at Dallas, Tex., with 10 per cent. attorney's fees if sued upon or if placed in the hands of an attorney for collection." Vernon's Sayles' Civil Statutes, art. 1830, subd. 12, provides that where the suit is filed for the foreclosure of a lien it may be brought in the county in which the property subject to such lien or a portion thereof may be situated. It was shown that the property upon which a foreclosure of the mortgage was decreed was situated in Deaf Smith county at the time the suit was instituted. This fact, under the statute referred to, gave the district court of Deaf Smith county jurisdiction.
Under the second assignment appellant insists that the judgment is erroneous because the plaintiff alleged that it was a foreign corporation having a permit to do business in Texas, and no proof was admitted to sustain the allegation, and because it was shown by the evidence of T. L. Ball that the contract for the sale of the engine was consummated at Hereford, Tex. This question has been considered several times and decided adversely to appellant's contention. It does not appear from the pleadings of the plaintiff that the transaction out of which this suit originated was in Texas. So far as its pleadings show the order may have been sent from Texas to Wisconsin, and was therefore an interstate transaction. Since plaintiff's pleadings do not show that the business was transacted in Texas, the allegation that plaintiff being a foreign corporation had obtained a permit is surplusage, and need not be proven. Appellant did not raise the issue by plea in the court below, and the fact appearing only from the evidence introduced during the trial, it cannot be urged in this court for the first time. Mansur Tebbetts Implement Co. v. Beer,
By their third assignment appellants urge the proposition that the court erred in sustaining appellee's exception to that part of the answer of appellant Barcus which is as follows:
"4. For further answer, if required, this defendant alleges that it is true that he and his codefendants herein executed and delivered to plaintiff their five certain promissory notes of date, etc.; * * * and this defendant alleges that at the time said notes were so executed and as part of the inducement to get this defendant to sign same plaintiff, through its representative who sold said engine and fixtures, represented to this defendant that he was selling for plaintiff said engine and fixtures to the defendant J. C. Robinson, and that the said Robinson could not pay sufficient cash on said deal to justify plaintiff in selling same on the security of the engine and fixtures, and that he required of said Robinson to give some personal security for the payment of said notes; that he, the said agent of plaintiff, would sell said engine and fixtures to said Robinson if this defendant would sign said notes as surety, and stated to this defendant verbally that if the first three of said notes were paid that the plaintiff would then, if said Robinson did not pay the other and last two notes, plaintiff would take said engine back and cancel said notes, and this defendant alleges that said representation so made by the plaintiff was part of the inducement for his having signed the same; that he relied upon said representations and signed same with the positive understanding and agreement on the part of plaintiff that he should not and would not be liable for the last two of said notes if the first were paid and satisfied, and that acting on the *480 promise of plaintiff and relying thereon, this defendant did sign said notes as surety; that but for the said representations he would not have signed said notes. This defendant alleges that the agent of plaintiff who made said representations was the person who sold to said Robinson said engine; that he now remembers his name as a Mr. Ball; that he may be mistaken in the name of the agent; that the defendant J. C. Robinson and A. S. Walker and F. S. Young were tenants on the farm of this defendant; that the agent of plaintiff above sold said engine and fixtures to said Robinson, and that the said Robinson, Young, and Walker signed said notes as principals, and this defendant signed same as surety under the conditions as set out above. This defendant alleges that the first three of said notes have been and were long prior to the filing of this suit fully paid off and discharged; that said engine and fixtures were tendered to the plaintiff in as good condition as when sold, reasonable wear and tear excepted; that this defendant and neither of the other defendants claim any interest therein, and this defendant has always been ready, able, and willing to carry out his part of said transaction, and this defendant alleges that the plaintiff has taken charge of said engine and now is holding and claiming the same; that plaintiff has so taken charge thereof, and has it in his possession and control, and that by reason of the above premises plaintiff is not entitled to recover of and from this defendant any sum whatever herein, and that by reason of the premises the plaintiff is now estopped from claiming any judgment on said two notes sued on herein or any other notes that were given by this defendant for said engine."
The exception sustained is that such pleading is an effort to vary the terms of a written agreement by showing a contemporaneous parol agreement, and because defendant fails to show that the engine was tendered at the same place and in the same condition as when delivered to the purchaser. The allegation being that plaintiff had accepted the engine, it was unnecessary to show that it was tendered at the same place and in the same condition as when delivered. In the briefs the exception is mentioned as a special exception. We think in its nature it is a general demurrer to this section of the charge. If the pleading had contained only the first paragraph of subdivision 4 of the answer, as we have set it out above, the exception would have been properly sustained, because the general rule obtains in Texas that parol evidence of a prior or contemporaneous agreement is not admissible to show that a promissory note providing for payment in money only might be satisfied in some other manner. Roundtree v. Gilroy,
It seems clear that if appellant signed the notes with the express understanding that if the first three were paid and appellee took charge of the engine for which they were all given, it should constitute a satisfaction of the last two is a defense, proof of which should have been admitted by the court, even though in doing so the parol evidence rule is violated.
The remaining assignments are overruled. For the error indicated the judgment is reversed, and the cause remanded.
Appellee insists that we have decided the controversy upon an issue not raised by the briefs. The judgment was reversed because the court sustained exceptions to one of the defenses set up by appellant. We think the brief of the appellant sufficiently raises the question decided. In any event, the action of the court in sustaining the demurrer is attempted to be upheld in appellee's brief by the first, second, and third propositions under the reply to appellants' third assignment. In view of the fact that the exception which was sustained by the court is a general, rather than a special, demurrer, the action of the court upon it presents fundamental error, and it became our duty to consider it, even though the point had been ignored by both parties. San Antonio v. Talerico,
Appellee is mistaken in such assumption. We held that the portion of the pleading to which the demurrer was sustained was an allegation of payment and discharge, and there is nothing in the original opinion that would justify appellee in insisting that we held the pleading to be one of accord and satisfaction. Accord and satisfaction "is distinguished, from payment in that by payment is generally understood a discharge by a compliance with the terms of the obligation, or its equivalent, while in an *481 accord and satisfaction the discharge is affected by the performance of terms other than those originally agreed on." 1 R.C.L. 178, § 2. The allegation is that the debt has been discharged in accordance with a parol agreement entered into at the time of the execution of the notes, and in the light of the above-quoted rule appellee is clearly in error in insisting that the plea is one of accord and satisfaction. This disposes of the remaining grounds of the motion save one, which is that the action of the court in sustaining the demurrer is harmless error because the court found that Barcus had subsequently renewed and extended the note sued upon, thereby waiving all previous agreements. The defense of waiver was alleged by appellee. Because of the court's action on the demurrer appellant was not permitted to prove the parol agreement alleged, and no evidence having been introduced upon it we cannot, of course, consider defenses alleged and facts found by the court in passing upon the correctness of the court's ruling. The ruling of the court upon the demurrer must be determined by the allegations of the pleading excepted to, unless it appears from the record that evidence was introduced which tended to sustain the facts alleged.
The motion is in all things overruled.
