250 S.W. 301 | Tex. App. | 1923
On December 16, 1921, the appellant executed and delivered to the appellee bank his promissory note in the sum of $3,358.25, due March 16, 1922, providing for interest at the rate of 10 per cent. per annum from maturity, and 10 per cent. attorney's fees. At the same time he delivered to the bank 17 other notes, executed by various parties, payable to him, and it is alleged that said 17 notes were delivered as collateral security to the principal note first above described. One of the collateral notes, in the sum of $1,000, was executed by J. M. and J. B. Anderson. There were 6 vendor's lien notes signed by Byrd, the first 5 of which were executed in the sum of $500 each, and the sixth being for $250; the first being due the 1st day of December, 1921, and one annually each first day of December thereafter. It is unnecessary to describe the remaining notes. The appellant having failed to pay the principal note, the bank advertised the collateral notes for sale and appellant instituted this suit on the 18th day of May, 1922, for the purpose of restraining by injunction the sale of said notes. A temporary writ was granted.
At the succeeding term of the court the bank answered by general demurrer and a number of special exceptions, and by cross-action against the appellant prayed for judgment for the full amount of its principal note, together with interest and attorney's fees, and for a foreclosure of the pledgee's lien upon the collateral notes above mentioned. The answer refers to the original note as Exhibit A, but it appears that if the note had at any time been attached to the answer it had been lost. The answer further asked for judgment upon two other unsecured notes due the bank from the appellant, aggregating about $400. The appellant replied by general demurrer and special exceptions, and further alleging that the bank had been negligent in not declaring the whole of the said series of vendor's lien notes due, and in not collecting the same, alleging that said notes were worth $2,750, and that the property upon which the lien was reserved to secure their payment was worth $3,000. He set up the fact that the $1,000 note signed by the Andersons was not pledged as collateral, but had been taken by the bank for another and different purpose. The controversy as to this note was eliminated upon the trial, by the bank tendering it into court, with the request that the possession and title of it be decreed to the appellant. In the original pleadings the various stipulations of the principal note were set out by the bank, except the following:
"We hereby authorize the Farmers' Merchants' State Bank, its officers, agents, or assigns, to collect said collateral when due, crediting the proceeds thereof on the foregoing note, but said bank or any holder shall not be liable for neglect or delay in collecting said note."
This clause was not pleaded by either party until the bank set it up by trial amendment after announcement of ready for trial. The court directed a verdict in favor of the bank, except as to the $1,000 note. The appellant's contention with reference to this phase of the case is not very clear. No objection is made to the filing of the trial amendment.
There is no rule more firmly established by our decisions than that the allowance or refusal of a trial amendment rests in the discretion of the trial judge, and unless an abuse of discretion is shown the ruling of the trial judge will not be disturbed on appeal. Davis v. Collins (Tex. Civ. App.)
Before the trial commenced the bank bled a written admission, in which it is stated that the plaintiff was entitled to have his injunction granted by the court. This admission, together with the further admission above stated, with reference to the $1,000 note, clearly entitled the appellee to open and close in the introduction of evidence and in the argument. Alston v. Cundiff,
The contention is further made that the appellee bank has been negligent in not filing suit upon the 6 vendor's lien notes delivered to it as collateral security, because the first note was overdue at the time the notes were received by the bank, and they each contained the acceleration clause. The rule is that a pledgee may, at his option, sue either upon the original note of his debtor or upon the collateral note. Marberry v. Farmers', etc., Bank,
It is further contended that, because no proof was offered upon the issues of attorney's fees, the court erred in rendering judgment in favor of the bank upon that issue, This question is settled adversely to appellant's contention in this state. Lanier v. Jones,
The court peremptorily instructed the jury to return a verdict for the bank, and upon such verdict judgment was entered for the amount of the notes due from appellant to the bank, aggregating $4,174.52, foreclosing certain chattel mortgages given to secure 3 of the notes and the pledgee's lien upon all of the notes described in the proceedings, except the $1,000 Anderson note. This note was decreed to be the property of the appellant.
The appellee filed numerous objections to the assignments and propositions, and to some of the proceedings in the trial court, but in its brief insists that 10 per cent. damages for delay should be assessed. Objections to the consideration of assignments of error are waived, when the appellee moves the court to assess damages for delay, since the effect of such a motion is to require us to examine the entire record for errors. Davis v. Teal (Tex. Civ. App.)
The motion to strike out the assignments of error and statement of facts is overruled. We are not convinced that the appeal is frivolous, and that it is prosecuted for delay. The judgment will therefore be affirmed, without the 10 per cent. damages prayed for.
Affirmed.