99 S.W.2d 416 | Tex. App. | 1936
This is an appeal from a temporary injunction granted by the court below restraining the “selling or causing to be sold at forced sale, that certain parcel of land and improvements situated thereon, to-wit: Lot No. 7 in Block No. 469½ of the Baker Addition to the City of Houston, Texas, until further orders of this cpurt.”
After careful consideration of the record, this court concludes that the challenged order was well within a sound discretion upon the part of the trial court, the facts material to be considered being substantially as follows:
The appellee had borrowed $3,000 upon the property involved from the Union Title Guaranty Company, Inc., of New Orleans, La., securing the same by his six promissory notes for $5 00 each, one maturing every six months, and a deed of trust upon the property; the Title Guaranty Company had a local office in Houston in the Union National Bank Building in charge of its agent, Mr. Hill, with whom the appellee dealt in connection with the matter and to whom he had paid the, first five of the notes successively as and when they became due; on the date he thought the final note was due he likewise went to Mr. Hill for the purpose of paying it, but was told that it had been sold to the appellant, Mr. Jacobs, at New Orleans, whose address he gave to the appellee; on the same day the appellee wrote and duly mailed to Mr. Jacobs this letter:
“1513-17 Center Street,
“Houston, Texas.
> “May 10th, 1933.
“FIRESTONE (Trade Mark)
“The Mark of Quality.
“Mr. A. C. Jacobs,
“care Pan-American Furniture Factory
“New Orleans, La.
“Dear Sir: — I am enclosing my check for the amount of $16.25, being interest on my note to you for $500.00 for six months at 6½. This note is due today and I expected to have a bank here notify us that you had left it for collection with a release of Lien as this is the last note of the loan.
“We are ready to pay the note, and request you to kindly draw a draft on the San Jacinto Trust Company, Houston, Texas, and we will take care of same on notification, by them. Please attach to the draft a Release of Lien, so that this matter can be finalled.
“We trust that you will give this matter your immediate attention and thanking you in advance, I remain “Very truly yours
“Joe Ludwig (Ink) P2675
“Hill.”
Thereafter, in due course of mail, he received this reply thereto from Mr. Jacobs:
“New Orleans, U. S. A.
“May 18, 1933.
“Mr. Joe Ludwig,
“1517 Center Street,
“Houston, Texas.
“Dear Sir: — This acknowledges receipt of your check amounting to $16.25.
“You may send $500.00 to the Whitney National Bank of this city and I will deliver the outstanding note to them. You may, of course, instruct them to pay this money when the note is delivered to them. “Very truly yours,
“A. C. Jacobs.
“A. C. Jacobs.”
It seems clear to this court in the circumstances that the course of dealing between the parties amounted to a waiver upon appellant Jacobs’ part of any right to claim more than the $500 he had so agreed to accept, in his answering letter, so tendered him by the appellee; that reply, by implication at least, simply amounted to his saying: “I accept the sum of $16.25 for the interest due. All I want now is the principal of the note, namely, $500.00”; since he made no objection that the tender of the $500 did not include additional interest, and that, for my reason, it did not coyer the release of the lien from him, both of these objections were thereby waived (see 62 Corpus Juris, p. 644, § 14b, under the title of “Tender”) ; not only so, but in the attending circumstances the ap-pellee’s tender of the $500 was thus presumably acceptable to the appellant as in full settlement of the debt, coupled with the requirement that a release of the lien be given, was not an unreasonable one; on facts not in legal effect differing from those here obtaining, the Dallas Court of Civil Appeals' — with the approval of the Supreme Court in its refusal of a writ of error — has so held in O’Connor v. Kirby Inv. Co., 262 S.W. 554, at page 557, in this declaration:
“Appellee had the right, not only to expect but to demand the execution of a release, whereby both the vendor’s lien and deed of trust lien would not only, in effect, be released as a matter of fact or which under judicial investigation could be so ascertained, but would be released as a matter of record so as to remove even the apparent cloud from the title to the property thus encumbered, before being required to make payment of the note, thus secured by the dual lien. In this respect it was the duty of appellant O’Connor, the holder of the indebtedness, to execute such a release as, when placed of record, would remove from appellee’s title the effect of the liens existing to secure the payment of the note that appellee was called upon to discharge. It was not sufficient that the release first tendered would have prevailed in a judicial contest, or by additional proof in support of same, to have freed appel-lee’s title from the cloud that would have remained on same by virtue of the deed of trust lien not having been released. Ap-pellee was entitled to demand and receive the full measure of protection and acquittance in this instance, and was not required to accept an instrument as a release which was incomplete in this respect, being only a means to assist in freeing its title from this burden and not within itself accomplishing such result.”
Without further discussion, the judgment will be affirmed.
Affirmed.