240 S.W. 1037 | Tex. App. | 1922
Lead Opinion
In September, 1919, the appellant, Parten, sold 169.64 acres of land situated in Cooke county, Tex., to the appel-lee, Martin, for $140 per acre. The consideration was to be paid partly in cash, partly in notes and by the assumption of two notes each for $4,200, previously executed by the appellant and his wife to the Federal Mortgage Company of Dallas, Tex. Those two notes bore interest at the rate of 7% per cent, per annum and extended over a period of ten years from 1919. This suit was instituted by the appellee against the appellant to recover the sum of $383.82 which he alleges he was fraudulently induced to assume as a part of the interest accruing upon the two notes above referred to.
The petition alleges that, at the time the appellee was negotiating for the purchase of the land, the appellant represented that the notes held by the Federal Mortgage Company bore interest at the rate of 7 per cent, per annum; that upon the faith of that statement the appellee agreed to assume the payment of those notes according to their tenor and effect; that his agreement had been accepted by the Federal Mortgage Company; that thereafter he ascertained that the notes bore interest at the rate of 7% per cent, per annum, making an excess of $42 per annum in interest over what the appellee had agreed to pay.
According to the proof and the appellee’s pleading, only a portion of this excess of interest had-been paid by him at the time this suit was instituted, but he was permitted to recover the entire sum which had accrued and that which would accrue during the term of years covered by the principal contract.
The legal right of the appellee to recover the interest which he had not then paid is practically the only question involved in this appeal.
The objections urged by the appellant, and the defenses discussed, appear upon the face of the plaintiff’s petition, and the exceptions should have been sustained. The evidence shows that the amount the appellee had paid at the time suit was filed, and which was the limit of what he might recover, was below the jurisdiction of the county court.
The case will be reversed and remanded, with instructions to dismiss the suit unless the petition is amended so as to state a cause of action within the jurisdiction of the trial court.
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Rehearing
On Motion for Rehearing.
The motion for rehearing is overruled.
Lead Opinion
In September, 1919, the appellant, Parten, sold 169.64 acres of land situated in Cooke county, Tex., to the appellee, Martin, for $140 per acre. The consideration was to be paid partly in cash, partly in notes and by the assumption of two notes each for $4,200, previously executed by the appellant and his wife to the Federal Mortgage Company of Dallas, Tex. Those two notes bore interest at the rate of 7 1/2 per cent. per annum and extended over a period of ten years from 1919. This suit was instituted by the appellee against the appellant to recover the sum of $383.82 which he alleges he was fraudulently induced to assume as a part of the interest accruing upon the two notes above referred to.
The petition alleges that, at the time the appellee was negotiating for the purchase of the land, the appellant represented that the notes held by the Federal Mortgage Company bore interest at the rate of 7 per cent. per annum; that upon the faith of that statement the appellee agreed to assume the payment of those notes according to their tenor and effect; that his agreement had been accepted by the Federal Mortgage Company; that thereafter he ascertained that the notes bore interest at the rate of 7 1/2 per cent. per annum, making an excess of $42 per annum in interest over what the appellee had agreed to pay.
According to the proof and the appellee's pleading, only a portion of this excess of interest had been paid by him at the time this suit was instituted, but he was permitted to recover the entire sum which had accrued and that which would accrue during the term of years covered by the principal contract.
The legal right of the appellee to recover the interest which he had not then paid is practically the only question involved in this appeal
The notes executed by the appellant and his wife were outstanding in the hands of the mortgage company. The appellee agreed with the appellant to assume the payment of those notes, principal and interest, as a part of the purchase price of the land. Appellee thereby became bound to the mortgage company for the debt. Hill v. Hoeldtke,
The objections urged by the appellant, and the defenses discussed, appear upon the face of the plaintiff's petition, and the exceptions should have been sustained. The evidence shows that the amount the appellee had paid at the time suit was filed, and which was the limit of what he might recover, was below the jurisdiction of the county court.
The case will be reversed and remanded, with instructions to dismiss the suit unless the petition is amended so as to state a cause of action within the jurisdiction of the trial court.
The motion for rehearing is overruled.