Bagley v. Pollock

• Decision Date: 29 May 1929
• Docket Number: (No. 3181.)
• Citation: 19 S.W.2d 193
• Parties: BAGLEY v. POLLOCK.
• Court: Texas Court of Appeals

19 S.W.2d 193

BAGLEY v. POLLOCK.

(No. 3181.)

Court of Civil Appeals of Texas. Amarillo.

May 29, 1929.

Rehearing Dismissed July 10, 1929.

Appeal from District Court, Dallas County; T. A. Works, Judge.

Suit by Charles Pollock against Eugene Bagley and another. Judgment against defendant named, and he appeals. Reversed and remanded.

Whitehurst & Whitehurst, of Dallas, for appellant.

Currie McCutcheon, of Dallas, for appellee.

JACKSON, J.

This suit was instituted in the district court of Dallas county, Tex., by the plaintiff, Charles Pollock, against the defendants, Eugene Bagley and Palmer Bagley, to recover the sum of $4,209.62, the payment of which is alleged to be secured by an equitable lien against certain land.

Plaintiff also sought to recover against the defendants the sum of $694.81 on open account, but as the court refused any recovery on the open account and refused any judgment against Palmer Bagley, and no appeal is prosecuted from such action, no further consideration will be given to the claim for the open account or the alleged cause of action against Palmer Bagley.

Plaintiff alleges that the defendant Eugene Bagley requested, and he loaned and advanced certain moneys to the defendant, with which to pay the cash consideration and with which to make certain deferred payments evidenced by vendor's lien notes on the land and premises, fully described in plaintiff's petition, deeded by G. N. Martin and wife to Eugene Bagley. The amount of each advancement and the date when made are set out in plaintiff's first amended original petition on which the case was tried, and the aggregate of such advancements amount to $4,209.62. Plaintiff alleges the terms and provisions of said deed, the consideration therein stipulated, which discloses that the defendant paid for said land $1,000 in cash and assumed the payment of vendor's lien notes amounting to $5,300, and executed additional vendor's lien notes for $1,450, making the total consideration $7,750. He alleges: That before the purchase of the land the defendant proposed to plaintiff that, if he would advance the $1,000 required to make the cash payment, and advance the money to pay the vendor's lien notes as they became due, that the defendant was required to assume and give, that plaintiff could have an interest in the property in proportion that the amount so advanced by plaintiff bore to the entire purchase price. That plaintiff accepted defendant's proposition and agreed to and did furnish the money as defendant requested, upon the understanding and agreement that the title to said property would be taken in the name of defendant and held in trust for the plaintiff to the amount so advanced and that plaintiff should be subrogated to the rights of the defendant's vendor and the holders of the vendor's lien notes and that the defendant would give plaintiff a lien on the land to secure him in the payment of all moneys so advanced. That the money so advanced would be repaid with 6 per cent. interest upon demand; to all of which defendant agreed. That in pursuance of said agreement and understanding, the plaintiff advanced the $1,000 for the cash payment and from time to time advanced other sums with which to pay off and discharge said vendor's lien notes and the interest thereon. That at the time of each advancement, the above promises were repeated and affirmed and the defendant accepted the money so advanced and paid it upon said land and notes. That all the vendor's lien notes have been discharged, except one, upon which there is due a balance of principal and interest, approximately $2,300, which constitutes a first lien and is prior to plaintiff's equitable lien. That the arrangement between plaintiff and defendant created a resulting or constructive or implied trust in favor of the plaintiff and gave him an equitable lien which was not repudiated by the defendant until about one week prior to the institution of this suit. Plaintiff prayed that he have judgment for his debt, and a decree determining his interest in said property according to the amount of money advanced by him on the purchase price, and in the alternative that he have judgment for his debt and a foreclosure of his equitable lien.

The defendant answered by general demurrer, numerous special exceptions, general denial, and pleaded specially the two, three, four and five years' statutes of limitation, and also the statute of frauds (Rev. St. 1925, art. 3995). The defendant further alleged: That he had entered upon and taken possession of the property, had paid in cash $951.25, which was the $1,000 cash payment, less the deduction for the proration of taxes and interest, and, in addition thereto, had paid $5,395.63 on the notes he had assumed and given, and asked that, in the event it be determined that he is not the owner of the property, that he have a foreclosure of his lien against the property and a sale thereof for the payment of said sums. That all the vendor's lien notes have been paid by him, except a balance on one note. That shortly after the defendant took possession of the property, with his permission, the plaintiff occupied and used a portion of said premises, which use and occupancy continued until about the middle of June, 1926. That during said time the plaintiff was afflicted and his health greatly impaired and he was incapacitated from doing any labor and such condition rendered it necessary to employ some person to wait upon the plaintiff and render him constant assistance. That at the request of plaintiff, the defendant did employ a practical nurse to take care of plaintiff, and the moneys advanced to the defendant by the plaintiff, as claimed in his petition, were paid to reimburse the defendant as a part of the general expenses and for the moneys paid out by the defendant for plaintiff's benefit.

The court's charge was filed on March 9, 1928, and to an inquiry, in writing, from the jury, filed March 10, 1928, the court instructed the jury that it had a right to pass on what checks, if any, went into the purchase price of the property.

In response to special issues submitted by the court, the jury found, in effect, that the defendant promised and agreed with the plaintiff that, if he would furnish the money to pay the cash consideration on the land and to pay off the vendor's lien notes as they became due, the defendant would repay said sums to the plaintiff on demand, with 6 per cent. interest thereon; that the plaintiff would be given a lien on said property for all such advancements made and furnished on the purchase price; that the amount of money so advanced and furnished by the plaintiff was the sum of $1,800; that the defendant repudiated the agreement and refused to pay plaintiff on or about November 3, 1926; that the defendant did not borrow any money from plaintiff, except that for which a lien was given; that, at the time of the purchase of the Studebaker automobile by the defendant Bagley, the plaintiff agreed to pay one-half of the purchase price thereof; that prior to August 1, 1923, the plaintiff paid $750 on the purchase price of said Studebaker car; that the $954 paid by plaintiff to the defendant about August 20, 1923, was not made as a payment on said automobile; that the $954 paid by plaintiff to the defendant about August 20, 1923, was a loan by plaintiff to the defendant; that on or about August 20, 1923, the plaintiff agreed to pay the defendant $50 per month for room, board, and other necessary expenses; that none of the checks given by plaintiff to the defendant beginning August 20, 1923, and ending May 6, 1926, were given to pay room rent, board, and necessary expenses.

On these findings, the court rendered judgment in favor of the plaintiff against the defendant for the sum of $1,800, and fixed an equitable lien upon the premises in controversy and ordered the property sold, subject to the first lien outstanding, for the payment of said $1,800, from which judgment this appeal is prosecuted.

The appellant assigns as error the action of the trial court in permitting the plaintiff to testify, over objection, that the defendant promised, before he purchased the property in controversy, that, if plaintiff would advance the cash payment and the money to pay off the vendor's lien notes as they became due, the defendant would repay such advancements to the plaintiff, who could have an interest in the land in proportion to such advancements, and that the defendant would give plaintiff a lien on said property to secure the payment of such advancements; because such testimony varied the terms of the written contract between the defendant and G. N. Martin for the purchase of the land and the deed from said Martin and his wife to the defendant by which said property was conveyed to him; and because such testimony was in violation of the statute requiring conveyances of real estate to be in writing and in violation of the statute of frauds; was an attempt to create an oral mortgage against the real estate; and that all the advancements claimed by plaintiff were due more than two years before the institution of the suit and barred by the statute of limitation (Rev. St. 1925, art. 5526).

"The rule as to the exclusion of oral testimony to contradict or vary the terms of a written contract is applicable only as between the parties to such contract. A stranger to such written instrument is not bound by its terms, and therefore he cannot hold other parties bound by the same. Johnson v. Portwood, 89 Tex. 249, 34 S. W. 596, 787; Jarvis v. Matson, 52 Tex. Civ. App. 170, 113 S. W. 328; 22 C. J. 1292, 1293; 10 R. C. L. 1020." Vander Stucken v. Willoughby et al. (Tex. Civ. App.) 242 S. W. 478, 479; Pennington v. Bevering (Tex. Civ. App.) 9 S.W.(2d) 401.

The plaintiff was not a party to the written contract between G. N. Martin and the defendant, nor a party to the deed from Martin and wife to the defendant, and did not base his suit on either...