Kilgore v. Moore

• Decision Date: 02 May 1896
• Citation: 36 S.W. 317
• Parties: KILGORE v. MOORE.
• Court: Texas Court of Appeals

36 S.W. 317

KILGORE v. MOORE.

Court of Civil Appeals of Texas.

May 2, 1896.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Action by L. B. Moore against S. C. Kilgore on notes. From a judgment in favor of plaintiff, defendant appeals. Reversed.

G. G. Randell and Wolfe & Hare, for appellant. A. B. Person, T. W. Stratton and Arthur G. Moseley, for appellee.

RAINEY, J.

This suit was brought by appellee to recover upon 36 different promissory notes executed by appellant at various times in favor of appellee; said notes stipulating for 12 per cent. interest and attorney's fees. Appellee also sought foreclosure of various chattel mortgages upon personal property, and to foreclose certain vendor's liens and deeds of trust on certain real estate given to secure certain of said notes. Defendant answered by general and special exceptions, general denial, and special answer to the effect that all the notes described in plaintiff's petition had been paid off and discharged, and that he was not indebted to plaintiff on account of the execution and delivery of any of said notes. There were various transactions between appellant and appellee, covering a period of several years; the transactions consisting partly of money advanced by appellee to appellant for or on his account, and payments made at various times and in various amounts by appellee to appellant, all of which were duly set up in the pleadings either of appellant or appellee. On hearing, judgment was rendered in favor of appellee for the sum of $18,028.35. The court, by its charge, submitted to the jury special issues, upon which the court rendered judgment.

The first assignment of error presented by appellant complains of the action of the court in failing to submit to the jury issues as to whether or not he was entitled to greater credits in as many as 11 different instances where he claimed to have paid a larger amount than appellee had allowed him credit for. The court, in its charge, instructed the jury to find for appellant certain credits, about which there was no dispute; and further submitted to them the question, in effect, to state in their answer any and all the credits other than those mentioned in his instructions to which appellant might be entitled. The jury, in answer to such question, found that appellant was entitled to several other credits, none of the 11 being included. We think the instructions of the court to the jury were fully sufficient to cover the issue raised by appellant, and that the finding of the jury thereon was responsive thereto, and clearly indicated that under the instructions of the court the defendant was not entitled to credit on the notes sued on for the amounts claimed.

The second assignment of error is: "The court erred in not causing the jury to find as to the amount of money received and paid out by plaintiff upon the Commercial College contract, because the evidence showed that said contract was assigned and transferred to plaintiff by defendant, and that all moneys were to be received from said contract by plaintiff, and certain amounts thereof paid out for labor and material used in the construction of said building; and defendant was entitled to a finding of the jury as to the amounts of money paid out by plaintiff on said contract, when the same was paid, to whom paid, the amount paid, and the purpose for which such payments were made; and, the plaintiff having failed to show what disposition had been made of all moneys received by him upon said contract, defendant was entitled to a credit for the entire contract price, to wit, $14,959."

The seventh question submitted by the court to the jury was as follows: "Was there any agreement between Moore and Kilgore with reference to the contract price Kilgore was to get for erecting the Commercial College building? If so, what was the agreement? How much of said contract price did Moore actually collect? How much had Moore advanced to Kilgore for the purpose of purchasing the material for the construction of said building, and for paying labor employed by Kilgore on said contract? How much, if any, of the amount actually...