Krause v. Pope

• Decision Date: 24 October 1890
• Citation: 14 S.W. 616
• Parties: KRAUSE <I>et al.</I> v. POPE.
• Court: Texas Supreme Court

14 S.W. 616

KRAUSE et al. v. POPE.

Supreme Court of Texas.

October 24, 1890.

Appeal from district court, Travis county; W. M. KEY, Judge.

N. G. Shelley and J. D. Guinn, for appellants. John D. Templeton, for appellee.

HENRY, J.

This suit was brought by J. H. Pope, the appellee, on the 12th day of February, 1889, upon two promissory notes, and to foreclose liens upon certain tracts of land. Both notes were made by Krause, and were payable to the order of John Hancock. Both were for the sum of $3,000 and dated June 23, 1875. Both retained a vendor's lien upon land described, and bore interest from date at the rate of 10 per cent. per annum. One of them became due in 12 months and the other one in 24 months after date. The last-described note expressed that the interest on it was to be paid "annually." The petition charged, and the evidence showed, that both notes were transferred by Hancock to the plaintiff on the 12th day of August, 1878. For the purpose of foreclosing the lien, in addition to the maker of the notes, (F. Krause, Sr.,) the following parties, who claimed interests in the land, were made defendants: F. Krause, Jr., J. Halm, Louis Krause, Theo. Heise, and Margaretha Krause, the wife of F. Krause, Sr. The petition charged that on the ____ day of ____ 1878, "the said Hancock and the said Krause, Sr., had entered into a contract by virtue of which said Krause, Sr., in consideration of an extension of time of as much as two years on the said notes from June 23, 1878, within which to pay the principal, he (the said Krause) would pay interest at twelve per cent. per annum on the amounts due on the said notes as it should fall due, meaning annually, and that the said time was extended to the said Krause on the said notes by the plaintiff; that, although the said agreement and contract were made before the transfer of the said notes to plaintiff, it was not reduced to writing, and signed by the said Krause, Sr., until the 5th day of September, 1878; but that on account of the matters herein the plaintiff is entitled to the benefit thereof, and it was an inducement for the purchase of said notes. The memorandum of said agreement is hereunto attached marked `Exhibit 4,' and made a part of this petition." The exhibit was attached, and reads as follows: "Exhibit 4. This memorandum witnesseth that, in consideration of an indulgence as to time extended to me by John Hancock on the payment of two notes of hand, executed by me to him, both dated June 23, 1875, and due, respectively, twelve and twenty-four months after date, and each originally for three thousand ($3,000) dollars, with 10 per cent. interest from date, I hereby agree to pay interest on the amounts due on said notes at the rate of 12 per cent. since the 23d of June, 1878, it being understood and agreed that I have an extension of as much as two years from said last date to pay the principal, on the payment of 12 per cent. interest as it falls due. This the 5th day of September, 1878. FRIEDRICH KRAUSE." The petition further avers that "in the said writing the said Krause, Sr., acknowledged himself as bound for said consideration to pay the said rate of 12 per cent. interest, payable annually, from June 23, 1878, to the said J. H. Pope, plaintiff herein." The petition further charged "that on the 19th day of February, 1884, the said notes not then having been fully paid, plaintiff and Krause, Sr., accounted together, and said Krause, Sr., signed a memorandum in writing wherein and whereby he acknowledged that there remained due on August 12, 1883, on the note first maturing the sum of $2,986.68, and on the other one that there remained due on said date the sum of $3,833.14, making a total due on said 12th day of August, 1883, of the sum of $6,819.82; that the said notes were just, correct, and unpaid, and for the amounts above stated, a subsisting indebtedness, and renewed the same for said aggregate amount, and promised to pay the same in gold coin, with the said rate of 12 per cent. interest, payable annually, and unpaid interest to bear the said rate of interest as if a part of the principal, and agreeing and binding himself to pay ten per cent. as attorney's fees in case the said notes should be collected by suit." The writing referred to was attached to the petition as an exhibit, and reads as follows: "Exhibit B. The state of Texas, county of Travis. Know all men by these presents, that whereas Fred Krause, of the county of Comal, state of Texas, did execute two promissory notes and deliver the same to John Hancock, both dated June 23, 1875, and due, respectively, twelve and twenty-four months after date, payable to said John Hancock, and each originally for three thousand dollars, with 10 per cent. interest from date; and the said Fred Krause, by an agreement in writing, dated September 5, 1878, agreed to pay interest on the above-mentioned notes at the rate of 12 per cent. on the amount due on said notes from June 23, 1878; that said notes were given for the purchase money for several tracts of land as described in said notes, and a vendor's lien retained by said John Hancock on said land to secure the payment of said notes; that said two notes above described were assigned by the said John Hancock for value received to John H. Pope, of Travis county, Texas, on the 12th day of August, 1878. And whereas the said notes are past due and unpaid, except the amounts of credits indorsed on each of said notes and the amount due, principal and interest, respectively, on the 12th day of August, 1883, and is as follows, viz.: On the note originally due in twelve months, the sum of twenty-nine hundred and eighty-six and sixty-eight one-hundredths dollars, ($2,986.68,) and on the note due originally in twenty-four months, the sum of thirty-eight hundred and thirty-three and fourteen one-hundredths, ($3,833.14.) Now, therefore, I acknowledge that the above-described notes are just, correct, and unpaid, and a subsisting debt; and I further acknowledge that I and the real estate described in said notes are held and firmly bound for the full payment of the above-described notes, and interest due thereon, and for value received I promise and agree to pay to John H. Pope or order the balance due on the above-described notes, the sum of six thousand eight hundred and nineteen and eighty-two one-hundredths dollars in gold coin, with interest, from and after the 12th day of August, 1883, at the rate of 12 per cent. per annum, payable annually, and if interest be not paid when due to become as principal, and bear same rate of...