Baines v. Kohler & Campbell

• Decision Date: 28 February 1918
• Docket Number: (No. 802.)
• Court: Texas Court of Appeals
• Parties: BAINES v. KOHLER & CAMPBELL.

201 S.W. 735

BAINES v. KOHLER & CAMPBELL.

(No. 802.)

Court of Civil Appeals of Texas. El Paso.

February 28, 1918.

Appeal from El Paso County Court; E. B. McClintock, Judge.

Suit by Kohler & Campbell against George W. Baines, Jr., and others. Judgment for plaintiff, and named defendant appeals. Reversed and remanded.

J. C. Brooke and R. H. Crews, both of El Paso, for appellant. F. E. Hunter and R. B. Redic, both of El Paso, for appellee.

HARPER, C. J.

This suit was instituted by Kohler & Campbell, a corporation, against H. T. Luthy, George W. Baines, Jr., H. S. Wigle, and J. H. Derrick, upon three promissory notes for $250 each, with interest and attorney's fees. The defendants, for defense, alleged:

That Luthy was indebted to plaintiffs upon open account in the sum of $1,000, or near that sum. That George W. Gittins, as agent of plaintiff, proposed that the account should be evidenced by promissory notes, with security. That said Luthy was then and now insolvent, which was well known to plaintiffs. That it was further proposed by said agent that if he would execute the notes with security, that as a consideration therefor plaintiffs would ship to Luthy a player piano. That by a parol contemporaneous agreement it was further agreed "that plaintiffs would furnish to defendant Luthy (principal on said notes) pianos of any and all varieties as they might be ordered and requested by said Luthy after he (said Luthy) should find and procure purchasers therefor upon terms of cash or credit, or partially in cash and on credit, and if on credit terms to be satisfactory to and with plaintiffs, and, further, to open to, and confer upon, defendant Luthy a general line of credit with plaintiffs (plaintiffs being piano dealers of a wholesale nature) which would, it was then and there agreed, enable said Luthy to deliver pianos to purchasers after sale thereof upon terms of cash or credit, or partially cash and credit, as the cases might be, and that all profits so made by said Luthy should be, it was then and there agreed, credited upon said notes. That it was furthermore understood and expressly agreed then and there by and between all defendants and plaintiffs (plaintiffs acting through their said agent) that said notes and none of them should in any manner or in any respect be or become effective or binding until the conditions named above were met by plaintiffs, to wit, until the extension of credit in accordance with the agreement had been actually made to defendant Luthy, and opened to him by plaintiffs, as before alleged.

"Sixth. Defendants Baines, Wigle, and Derrick aver that prior to delivery and execution of the notes mentioned unto plaintiffs on said day and as an express condition precedent thereto which they and each of them agreed and understood with plaintiffs, and to which plaintiffs then and there agreed, they, the said defendants, relied upon and were moved solely by the dependent collateral agreement, mentioned in the preceding paragraph hereof, as well as the further agreement that said notes should not be effective or binding until said agreement was met by plaintiffs; that the material fact constituting the basis on which said three defendants signed said notes as sureties was the parol contemporaneous agreement mentioned in the preceding paragraph thereof, and that plaintiffs, through their said agent, then and there expressly promised defendants and represented unto them that said agreement would be in all...