4 Willson 204 | Tex. App. | 1890
Opinion by
§ 142. Judgment; cannot be rendered for principal of note, interest thereon and attorney's fees when the verdict is only for the principal. The Brunswick-Balke-Collender Company instituted this suit against T. J. Love-lady, Freiberg, Klein & Co., James Foster and Y. H. Merriwether. As alleged in the petition, the cause of action against the several defendants is, in substance, that on August 1, 1885, T. J. Lovelady, by his agent, J. P. Lovelady, executed and delivered to plaintiffs four promissory notes, each for the sum of $67.5,0, bearing ten per cent, interest per annum from date; that said notes are due and unpaid, etc.; that said T. J. Lovelady, by his said agent, at the time of executing said notes, also executed and delivered to plaintiffs a chattel mortgage upon certain property therein described, to secure the payment of said notes; that said mortgage was duly registered August 12, 1885; that in March, 1S86, Freiberg, Klein & Co. became purchasers of said property at a sale thereof made by the shei’iff under an order of sale issued in an attachment suit against said T. J. Lovelady; that thereafter Freiberg, Klein & Co. sold said property to Y. H. Merriwether, and said Merriwether sold the same to said James Foster; that all and each of said purchasers of said property bought the same with full notice of plaintiffs’ notes, etc. Plaintifís pray for judgment against said T. J. Lovelady for the amount of said notes, interest, etc., and for a foreclosure of this mortgage lien
We are of opinion that the judgment should be reversed and the cause remanded for another trial. By here rendering judgment in accordance with the verdict, appellees would not have judgment for the amount to which they are entitled, if entitled to judgment for any amount, and would furthermore be deprived of a proper adjudication of their mortgage lien.
In his charge the court instructed the jury to find the amount of the principal of the notes, if they found for the plaintiffs, saying nothing about interest and attorney’s fees. The jury obeyed the instructions, finding merely the principal of the notes; and the court, in the judgment, added to said amount found by the jury interest and attorney’s fees, making the judgment largely in excess of the verdict. The court should have instructed the jury that, if they found for plaintiffs, they would find the amount due them, principal, interest arid attorney’s fees. Such, we think, is the proper and usual practice.
§ 111. Evidence; agent; declarations of, not admissible without proof of agency and scope of same. "We cannot determine from the record before us whether or not the court erred with respect to the testimony as to the declarations of J. P. Lovelady. Such declarations were not admissible unless said J. P. Lovelady was, at the time of making them, the agent of T. J. Lovelady. If he was then such agent, and acting and speaking within the scope of his apparent authority as such, his declarations were admissible when offered by either party. On another trial J. P. Lovelady’s declarations should not be admitted, unless it be shown that at the time of making them he was the agent of T. J. Love-lady, and in making them was acting within the scope of his apparent authority as such agent.
Reversed and remanded.