Ablowich v. Greenville Nat. Bank

• Citation: 54 S.W. 794
• Court: Court of Appeals of Texas
• Decision Date: 16 December 1899
• Parties: ABLOWICH v. GREENVILLE NAT. BANK.

54 S.W. 794

ABLOWICH v. GREENVILLE NAT. BANK.

Court of Civil Appeals of Texas.

December 16, 1899.

Appeal from district court, Hunt county; Howard Templeton, Judge.

Action by the Greenville National Bank against A. Ablowich. Judgment for plaintiff. Defendant appeals. Reversed.

Craddock & Looney, for appellant. Lee A. Clark, for appellee.

CONNER, C. J.

This was a suit by appellee upon a note and mortgage executed by appellant, and alleged to have been duly assigned to appellee by Hon. M. M. Brooks, the payee. The note was in the usual form of a promissory note, payable in the sum of $450 six months after date, except that it was without words of negotiability. The duly-verified defense thereto specially urged, and which the evidence of appellant tended to support, was, in substance, that just prior to the execution of the note sued on appellant stood charged by complaint with the offense of murder, in defense of which charge he had employed the said Brooks as counsel; that, in consideration of his services as such, it was agreed that, in the event appellant should not be indicted, the fee of said Brooks should be not to exceed $150, but, in case a grand jury found a bill of indictment against him, he was to pay said Brooks the full fee of $500, of which $50 was then paid in cash, and the note and mortgage sued on given for the remainder. It was alleged that said Brooks represented that he (appellant) would certainly be indicted, and that said fee of $500 included compensation for the services of said Brooks not only before the examining court, where said charge was then pending, but also throughout a trial upon indictment found, and throughout the entire prosecution. It was alleged that in fact appellant had not been indicted, although several terms of the grand jury had intervened, but that, if indictment should yet occur, said Brooks was now serving as judge of the court of criminal appeals, to which office he had been duly elected since the execution of said note, and was, therefore, disqualified to now represent appellant; that the services of said Brooks actually performed were of value not to exceed $150, of which $50 had been paid as alleged, and $100 of which had been duly tendered. A partial failure of consideration was, therefore, alleged. We are of opinion that the matter here set up was variant from the terms and legal effect of the instrument sued upon, and that, therefore, though not alleged in appellee's pleadings, no error to appellant's prejudice was committed by the court in charging the jury to the effect that they should find for appellee if they should find, as indicated in the testimony of said Brooks, that prior to the execution of said note, and subsequent to the agreement as contended for by appellant, there was another agreement between said Brooks and appellant for the absolute and unconditional payment of a fee of $500, of which $50 was paid in cash, and that pursuant thereto the note and mortgage sued on were executed. No fraud, accident, or mistake in execution was alleged, and we must indulge the legal presumption that all prior agreements, so far as assented to, had been merged in the written instruments executed, and that they contained the exact terms upon which the minds of both parties thereto met. The instruments sued upon evidenced an absolute promise to pay $450 within a specified time, without condition, and we do not think it was competent to show by parol that the agreement in fact contained a condition upon which a less sum was to be paid. That the real consideration of the instruments sued upon was the legal services performed and to be performed by said Brooks is not disputed. It appears from the averments of appellant's answer, as well as from his testimony, that, in the event he should be indicted for the offense with which charged, the sum specified in the note was payable. It was not alleged that there was any bar to the happening of such contingency, or that the condition of disqualification alleged would continue, so as to prevent full performance of the services contemplated on the happening thereof. In view of the unqualified promise to pay within six months, it could not be insisted that payment should be withheld. See Smith v. Garrett, 29 Tex. 49; Reid v. Allen, 18 Tex. 241. As illustrating, perhaps, the views expressed, the following authorities may also be read: Milliken v. Callahan Co., 69 Tex. 206, 6 S. W. 681; Newton v. Newton, 77 Tex. 508, 14 S. W. 157; Janes v. Brewing Co. (Tex. Civ. App.) 44 S. W. 896; Leavell v. Seale (Tex. Civ. App.) 45 S. W. 171; Gammage v. Walker (Tex. Civ. App.) 46 S. W. 916; Bedwell v. Thompson, 25 Tex. Sup. 246; Wright v. Hays, 34 Tex. 253; Saunders v. Brock, 30 Tex. 421.

A more serious question, however, is presented in the eighth assignment of error. In this assignment it is insisted that the court erred in overruling appellant's motion for new trial, for the reason set forth in the ninth ground of his amended motion therefor, which was duly verified. It is alleged in this ground that after judgment herein, and after the original motion for new trial had...