Barlow v. Cotulla

• Decision Date: 17 February 1915
• Docket Number: (No. 2359.)
• Citation: 173 S.W. 874
• Parties: BARLOW v. COTULLA.
• Court: Texas Supreme Court

173 S.W. 874

BARLOW v. COTULLA.

(No. 2359.)

Supreme Court of Texas.

February 17, 1915.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Joseph Cotulla against M. J. Barlow. There was a judgment of the Court of Civil Appeals (141 S. W. 292) affirming a judgment for plaintiff, and defendant brings error. Affirmed.

C. L. Bass, of San Antonio, for plaintiff in error. C. C. Thomas, of Cotulla, and Charles Rogan, of Austin, for defendant in error.

PHILLIPS, J.

Cotulla, being indebted to Barlow in a large sum, secured by a lien upon land, sold a tract of the land to Hargus, receiving as part of the consideration the latter's vendor's lien note for $2,596.15, payable to his order, three years after date, bearing 8 per cent. interest. Cotulla transferred this note to Barlow a few days after he received it, upon a verbal agreement with Barlow, as he contended upon the trial, that its principal and interest, when collected, should be applied upon his indebtedness to Barlow, and that, in consideration for such transfer, the latter would release his lien upon the tract conveyed by Cotulla to Hargus, so as to give Hargus an unincumbered title. Barlow collected from Hargus the principal and interest upon the note, but refused to account for or pay to Cotulla the amount of the interest, the subject-matter of the suit at the time of the trial, and for which amount Cotulla recovered judgment against him. The date of the conveyance of the tract by Cotulla to Hargus was February 23, 1904. Barlow executed a release of his lien upon that tract on February 26, 1904, reciting that Cotulla had that day indorsed to him the Hargus note.

The basis of Barlow's asserted right to the amount in controversy was an instrument in writing executed by Cotulla and himself, of date March 3, 1904, reciting that, in consideration of Barlow having released his lien upon the tract conveyed to Hargus, he should collect the principal and interest of the Hargus note, at its maturity, credit Cotulla's indebtedness with the amount of the principal, and that he should have, as a consideration for releasing his lien on said land, all interest collected on the note.

Cotulla pleaded against this written instrument that the agreement it embodied was without consideration, since prior to its execution Barlow had already verbally agreed in consideration of the transfer to him of the Hargus note, then delivered to him, to release his lien upon the Hargus tract and...