91 S.W.2d 887 | Tex. App. | 1936
This suit was instituted by appellee, Lewis French, against appellant, Oliver Farm Equipment Sales Company, to recover damages for the alleged wrongful seizure of a certain farm tractor and equipment under a contract provision for repossession thereof contained in a chattel mortgage. Appellee alleged that in the year 1930, he purchased from a dealer in Mart, Tex., the tractor and equipment involved herein for the sum of $1,460; that he paid cash therefor the sum of $1,250 and executed and delivered his note, due October 15, 1932, for the remainder of the purchase price in the sum of $210, which note was transferred by the dealer to appellant; that about thirty days before the maturity of said note he advised appellant that he would be unable to pay the same at that time; and that appellant agreed to extend the note for one year, and that he relied on said agreement. He further alleged that notwithstanding said agreement, appellant, acting by its agents, servants, and employees, on or about February 23, 1933, appeared at his home on the farm he was occupying at the time and demanded possession of said tractor and equipment, and that such demand was refused; that notwithstanding such refusal, said parties, acting for appellant, during his temporary absence from the scene, loaded said machinery onto a truck and drove away with the same; and that he was damaged by such wrongful act in the sum of $1,000.
Appellant pleaded its ownership of said note and the terms of the chattel mortgage securing the same, including the provision for repossession contained therein, as justification and authority for such seizure. It did not attempt to account for said property by showing any disposition thereof as authorized by the terms of the mortgage. Appellant further pleaded that appellee voluntarily surrendered possession of such machinery in consideration of the satisfaction and discharge of his indebtedness evidenced by said note, and signed and delivered a written bill of sale conveying the same to appellant for such consideration, and that it thereafter mailed to appellee his *888 said note and a formal release of said mortgage. Appellant also assailed the agreement for extension of said note pleaded by appellee, on the ground that there was no consideration for such extension. Appellee did not file any reply to appellant's answer.
A trial before the court without a jury resulted in a judgment for appellee for damages in the sum of $300. The court, at the request of appellant, filed findings of fact and conclusions of law, and included therein findings, in substance, that appellee had not surrendered possession of said machinery voluntarily, but that same was taken without his consent, and that he did not sign the bill of sale to said machinery as alleged by appellant.
Appellant presents an assignment in which it contends that appellee's allegation, that the note sued on herein was by verbal agreement extended for one year from its maturity, fails to show any consideration for such extension. When a debt bears interest either by convention or operation of law, the effect of an agreement by the parties thereto for an extension for a definite time is that the creditor is bound to forbear suit during the time of the extension, and that the debtor is bound to forbear to discharge his debt and thereby stop the accrual of interest before the time agreed upon. The accrual of interest in such cases is a sufficient consideration for the promise of forbearance in bringing suit. Ward v. Scarborough (Tex.Com.App.) 236 S.W. 434, 437, par. 3, and authorities there cited.
Appellant's other assignments of error complain of matters which will not necessarily arise in the same way, if at all, upon another trial.
The judgment is reversed, and the cause remanded.