*1
tending
dence
to show that
perform
ap-
duty
failed to
it owed to
JONES
al.
v. THOMPSON et
pellee’s
ordinary
pro-
son-to
care
so
use
to
(Court
Appeals
of Civil
Texarkana.
of Texas.
prevent
tect
tricity
maintain
as
elec-
May 11,
its wire
to
Rehearing,
Motion for
On
15, 1911.)
рassing
chain.
June
therefrom to the
duty
violated,
any,
duty
if
it
was the
(§ 127*)
1. Limitation
of Actions
—Com
Pleading—Amend
proper
knew,
mencement
owed to use
care
Action —
ment.
known,
should have
connection had
that the
Before the statute
run
of limitations
wire,
steps
been made with its
to take such
upon
seeking
the
action,
petition
the cause of
was filed
danger
as
thereby
promissory
were
to remove the
to recover a
note and cancel
assignment, whereby
it,
the holder claimed
persons
might get
caused to
whо
ground
part
given
on the
the note was
all,
contact
chain.
If liable at
for
of the consideration of
perform
duty;
it was because it failed to
this
the sale of
come
parties
be-
had never
operative, owing
inability
court,
of the
and the trial
appears
on
as it
the evidence
its terms. After
record,
au-
should not have
petition
expired,
of limitation had
an amended
jury
against
thorized the
to find
unless
seeking
was filed
the value of the
duty. note.
wrongful
believed
had violated this
detention
BeW,
was the basis of the сause of action.
Light Co.,
App.
Burbaker v. Electric
439,
130 Mo.
petition
was a continuance of the
12;
Light
Smith v.
W.
Electric
same
and the
was not barred.
19,
198 Pa.
Atl. 1123. Because the
cases,
543-547;
[Ed.
other
Limitation of
Note. —For
see
portion
charge complained
Actiоns,
Dig.
Dig.
of author-
Cent.
§§
Dec.
§
127.*]
finding against appellant
ized
without ref-
duty
for
erence to whether it had violated said
(§ 17*)
2. Vendor and Purchaser
not,
judgment,
in so far as
—Assent-
Necessity.
against appellant, will be reversed.
Parties
an oral
entered into
contract for
jury
[2] The verdict of
as follows:
sale
should be
able to
land
its terms
with
“We,
jury,
find for the
Jim
reduced to
agree upon
Finally
its terms.
the ven-
Case in the sum of twelve hundred dollars
purchaser,
dor submitted
($1,200) adjudged equally against
the de
purchaser
and returned. The vendor
fendants,
Railway Light
the Citizеns’
Com
&
express
this
failed
contract or
assent.
Held,
pany
City
he could claim
no benefits under
Worth. We also
Ft.
cases,
[Ed.
other
see Vendor
Note. —For
against
father
J. C. Case
both Purchaser,
Dig.
Dig.
§ 17.*]
§
Dec.
Cent.
$38.20,
defendants in the sum of
cover
Appeal
Court,
chargеs.”
from District
Wichita Coun-
medical
rendered a
On this verdict the court
ty;
Carrigan, Judge.
A. H.
judgment against appellant
against Morgan
city
Action
J.
jointly
T.
for the sum of
judgment
and others. From a
$38.20
favor
Jim
and for the sum of
Case
plaintiff,
appeals.
Affirmed.
ap
in favor of his father. On motion of
pellant
judgment
this
was so
afterwards
a
Flournoy,
D. T. Bomar and
Smith & Stor-
adjudge
recovery
reformed
of Jim Case
$600,
as to
favor er,
appellant. Montgomery Britain,
&
against appellant
sum of
of
appellees.
city
against
and in' his favor
$600;
recovery
sum
the
оf J. C. Case
favor HODGES,
originally in-
J. This suit was
against appellant
city
appellee,
T.
stituted
J.
jointly
sum
a cross-as
$38.20.
against
Leigois,
husband,
her
Amelia
signment
complain
the' Cases
of the action of
appellant.
purpose'
sustaining appellant’s motion,
court in
the
аnd
against Leigois
was to recover
reforming
judgment
indicated.
promissory
of a
the amount
note executed
authority
Railway
Bowles,
Co. v.
On the
formerly
Tennison,
Leigois,
Amelia
Amelia
880,
Light
Tex.
S.
&
32 W.
Power
January foreclose a ven-
Compton,
App. 586,
v.Co.
48 Tex. Civ.
upon a
dor’s lien
ed in'
certain tract of land describ-
S.
which seem to be
W.
conclusive
for which the note was
question made,
assignment
the
tained. And see
is sus given
purchase price.
aas
of the
After
Ry.
Bowles,
Co. v.
30 alleging
execution and
89; City
Williams,
Ft. Worth v.
S.
maker to
one Williams and its
142; Light
Moore,
Power
S.
&
Co. v.
119 W.
Thomp-
transfer Williams to
837. The
in so
118 S. W.
therefore
son,
suit,
petition
in the
city of
Ft. Worth
understanding
avers that
virtue of. an
adjudge
reformed as
will
so
a recov
which it is claimed never be-
ery against
fqyor
init
of Jim Case
effective,
or was void on
camе
account
$1,200,
$600,
costs,
instead of
being writing,
sum
and
the note had been trans-
recovery against
it in favor of
C.
J.
ferred
wrongfully retaining
that Jones was
costs; and,
sum of $38.20
Case
of the note
reformed,
claiming
and
cludes
to own it. The
prayer
posses-
be affirmed.
will
the title and
tоpic
Dig.
Big.
Key
Rep’r
cases see same
and section NUMBERin
&
Am.
No. Series
&
*For oilier
Dec.
Indexes
*2
(Tex.
REPORTER
SOUTHWESTERN
against Jones,
tition,
the
in
and
sion of
he denied the facts
the note as
set
by
Jones,
alleges,
had forth
the
in
of written transfer
and
cancellation
theretofore been
ment
amount
a
substance,
judg-
him,
that no
and
contract
made
had ever been
suscep-
the entered into
between
defendants
them
was
the other
that
enforcement;
they
note,
agreed
tible of
attor-
interest and
that
had
contract,
neys fees,
to make a
vendor’s
but that
a foreclosure
none in fact
and
peti-
upon
premises
had ever been made. The
This
lien
tion was filed on the
described.
shows
day
September,
May, 1906,
day
that
the 10th
18th
Jones
February
1910, appellant
by
owner of
the land referred to
1908. On
par-
answer;
in
Thompson
him his
that he and
in which the same
negotiations by
defendants,
had some verbal
re-
but the
ties
retained as
are
agreed
Thompson
against seems to
have been
that
value of the note
lief
option
purchase
upon
should have the
allegations
exclusive
he had converted
Jones
that
per
the land from Jones at $8
acre until
to his
use.
January following;
general
the 1st of
by
that
$2
answered
The defendant Jones
paid
general
that amount was
special exceptions,
way
to be
in
demurrer,
cash
and
sold;
land was
рrotected
plead-
special answer,
Jones
to be
nial.
he
agreed
in some
day May,
manner not then
ed
owned
on the 10th
that
upon
payments.
in the deferred
It was also
a number
land situated
of tracts of
agreed
parties
Baylor
counties, aggrеgating
between the
written
in
and Archer
subsequently
something
5,000
should
acres;
be entered in-
entered
over
that he
expressing
by to
agreement
appellee
in detail all of the terms which
into an
with the
discussed,
providing
had been
and
the meth-
all of
land re-
he sold
latter
protected
acre,
being od
per
Jones should
in
at
ferred to
$500
by
$8
payments.
$1,200
paid the deferred
paid
It
in cash and
Thompson immediately
began
thereafter
ef-‘
note
the indorsement
upon
assumption
forts to sell the lands
for the
conversion of which this suit
get
per
that he
brought,
purchase price
was to
them
$8
at
acre.
remainder of the
prepared by
Written contracts were
in
each
to become due
18 months after the 10th
party
other,
May,
per
transmitted to the
but were
of
cent,
and to bear interest at 7
rejected upon
per
the contention that
annum from the 10th
of No-
compliance
original agree-
in
following;
not
ment.
vember
tained
should be closed
said
following
provision
Some time in November
further
the sale
prepared
Bomar,
writtеn
up
within six months
vas
attorney
May, 1906, also,
and transmitted to
10th of
that the lands
signature.
sign-
rang-
value,
This was
were of different character and
by Thompson
duplicate
changing
ed
a
ing
acre;
price
in
per
in
and value from
to$5
$12
date,
distinctly
him
agreed
returned to Jones. Jones
that it was
and un-
acknowledged receipt
parties
contract,
derstood between the
action should evidence a sale ofi said lands
that the trans-
stated that he had
referred it
his attor-
ney,
whole,
who was authorized to examine
not otherwisе.
also al-
attorney
leged
expressly
his name thereto.
that was
understood that
to,
Thompson by
stipulated
paid
by referred
also informed
let-
$500
cash
receipt
$1,200
ter of the
but said
and the note for
sued
cause,
kept by
did
that he
not then have time to
in this
guaranty
examine
should be
Jones as
it and determine whether or not was cor-
that all of
said lands would be
reason,
average
some
price
rect. Eor
sold and
tioned,
contract was
for at the
men-
signed
never
returned to
and that those items were not to bе
principal question
taken into account in
the
sold and
here involved seems
between
settlement
parties
until all
to be as to whether
of the lands
contract transmitted
made
accordance with
Jones
that,
binding agree-
done,
become
when
hаd ever
effective as a
this was
parties,
for;
ment
be accounted
the facts
it was
agreed
disputed
that,
plaintiff
also
to sell all the lands
agreement,
if the
was never
should fail
by any
or
as follows
one for him.
court
and to
found
out his
then the sum of
that issue:
$500 in cash and
May, 1906,
defendant,
the note
on should
“I
become forfeited
reason of such failure
owned
within the
date of the
and controlled about
surveys
Baylor
aforesaid six months from the
of land in
Archer
undertaking.
alleges
counties, Tex., aggregating something
The answer thеn
over
5,000
May,
failure on the
of land.
acres
comply
suit to
tract,
with the terms of the con-
J. T.
defendant, Jones,
a forfeiture of
conversation with
pleaded
purpose
selling
land;
note resulted.
also
the
terms
cause of action was
the stat-
were to be reduced
ute of limitation of two
There were to
never were reduced to writ-
agreed upon
parties;
other defenses not
here
to men-
supplemental
tion. The
pe-
filed a
said time when
.the
ence
icourt,
No
n tiff.
not
conversion. should
mony shows
not
that, therefore, the
more than a
We
is entitled to
tract between
were discontinued
I
red and
sufficient to
consisted
to retain the note
never
tract,
fendant, Morgan Jones, believing that he was
*3
to
200 note
tract
tiff that he
Jones as
and
entered into
аccrued interest.
before
as
to
after
entitled
vember
ant, Morgan Jones, wit, on or
reference to the sale of said
sent
described
ed the
on
gan
[1]
“That the
further find
pay
July 1, 1906, and
good purpose
adopt
specific
apply.”
changed by
Jones for his
I
defendant, Jones,
Morgan
forfeit
several
having
that defendant
.testimony bearing
hold
16, 1906, plaintiff
It seems to be contended
to the
lands between
sold the
never,
put
shown
mainly
able to
the statute of limitation
“Conclusions of Law.
justify
shown
plaintiff’s petition,
year,
parties, covering
to be held
attempts
the value
his
finally
Jones never
findings
themselves,
that, plaintiff
case
cash,
there
also insists that
agreed upon by
could be
of the written
same.
of this suit
n
agree upon any
accepted
date from the
signature
the cause оf action was
I therefore
statute
and never
have
the conclusion reached.
consummated
a contract
and said
note sued
said written
sent
detail.
the $500 to
was no final contract
of
were had
the record for
cause of action
of fаct made
by defendant,
been its face and
quite
the same to Mor-
the note sued
subserved
them,
testimony
is
and defendant
limitation did
notified
rendered
on,
not entitled
voluminous.
and defend-
for the sale
same;
correspond- affixing
and*
acceptance;
3d
abоut
final
any
transfer-
agree
Morgan
parties.
of-two
by giv-
execut-
agreed
plain-
plain-
dated
testi
Issue he could
was If
con-
con-
fail
No-
$1,-
the was
pn,
on pose
-he
virtue of
note
that
written more than three months after that
ure in the first instance to
nishing
tract,
available after
calls attention to
April,
that these should
expire
now claim the benefit
time.
be looked
contract
to
at that time
show the
firmed.
Boutwell,
Jones v. Thompson
138 S.W. 623
Tex. App.1911Check TreatmentAI-generated responses must be verified and are not legal advice.