No. 2944. | Tex. App. | May 22, 1924
The note sued on provided, as material to state, as follows:
"February 7, 1921. On January 1, 1922, after date, I promise to pay to J. G. Minkert or order the sum of two thousand two hundred and eighty dollars, with interest thereon from maturity at the rate of 80 per centum per annum, the interest payable annually at Greenville for value received. * * * It is agreed and understood that failure to pay this note, or any installment of interest thereon, when due, shall, at the election of the holder of them, mature all notes this day given by O. E. Minkert to said J. G. Minkert in payment of said property."
On September 19, 1921, these parties, "for mutual benefit," as stated, agreed to "an extension of the time for the payment of the unpaid portion of said indebtedness, to mature as follows, to wit, on February 7, 1927." The court concluded that the failure of the appellee to pay interest at the time this suit was brought did not confer upon the appellant the right to declare the note sued on due, for the legal effect of the agreement of *650 September 19, 1921, changing and postponing the maturity of the indebtedness to February 7, 1927, was to entitle the appellant to interest only after the latter date, because this date became the time of maturity to which the note would refer and apply. The point for decision here is that of whether or not the appellee was due to pay interest from and after January 1, 1922, or February 7, 1927.
The purpose and intention of the agreement of September, 1921, was clearly to change or modify the time of payment of "the unpaid portion of said indebtedness," which is described as "the sum of $2,280." No other term or parts of the original note are mentioned. The change and substitution of date for the payment of the indebtedness mentioned was made, as recited, "for the mutual benefit." There is nothing in the nature of the agreement suggesting any other reason or necessity for the change. And it can hardly be pretended that it was not competent, after the original note was made and signed, for the parties to make, "for mutual benefit," another agreement in regard to some parts of the note, which to that extent should be a substitute for the first one. In this light the two instruments, the original note and the later agreement, must be considered and construed together, giving proper legal effect to all the terms therein. Undoubtedly, the principal sum of the note would not be due and payable until February 7, 1927, for this is the substituted date expressly agreed upon in the later agreement. But, according to the terms of the note, which was not changed by the agreement, "failure to pay any installment of interest thereon when due" would mature the principal sum and make it due and payable. The agreement does not refer to interest, while the terms of the note do provide in respect thereto. According to the terms of the note, the maker was to pay "interest thereon from maturity at the rate of 8 per centum per annum, the interest payable annually." The words "interest thereon from maturity," appearing in the note, express an agreement respecting the payment of interest, and that it shall begin "from maturity," meaning and referring to January 1, 1922, and be "payable annually" until the principal sum be fully paid. Consequently, by the terms of the note the maker would be obligated to pay interest on the principal sum from and after the contracted date of January 1, 1922. The supplemental agreement of September did not offset or modify this term of agreement respecting interest, unless it was intended by the parties that the substituted date of maturity should relate back and speak as of the date of the note. Then, clearly, if such were the intention of the parties, no interest was due or payable until the new date of "maturity." But it cannot properly be said, from the agreement or the circumstances, that the parties intended the new date to relate back or to speak from any other date than September, 1921, when it was made. Speaking from the date of September 19, 1921, the agreement, as it does, would evidence the intention, "for mutual benefit," to grant longer time to the maker in which to pay the principal sum, and the maker to pay interest from the date of January 1, 1922, and "annually" to the new date of maturity. The intention and purpose of the parties was not to change or modify the agreement respecting interest, but to have the note bear interest from its first maturity in January, 1922, and to substitute a new date only for the payment of the principal. An extended note, unless otherwise specially provided, bears interest, from the original date fixed in the note. Dashiell v. Moody Co.,
In order for the appellant to recover on the $750, it devolved upon him to show that the appellee has not paid it after judgment was rendered and that he himself had paid the judgment. In the absence of such proof a judgment cannot be rendered.
The judgment is reversed, and the cause remanded for another trial.