Barrett v. Featherston

• Decision Date: 22 February 1896
• Citation: 35 S.W. 11
• Parties: BARRETT v. FEATHERSTON et al.
• Court: Texas Court of Appeals

35 S.W. 11

BARRETT v. FEATHERSTON et al.

Court of Civil Appeals of Texas.

February 22, 1896.

Appeal from district court, Clay county; George E. Miller, Judge.

Action by W. H. Featherston and others against L. C. Barrett on a promissory note, and to foreclose a mortgage. From a judgment for plaintiffs, defendant appeals. Affirmed.

Stine, Chesnutt & Hurt and Hogsett & Orrick, for appellant. Templeton & Patton, for appellees.

Statement of the Case, with Conclusions of Fact.

STEPHENS, J.

Appellees, W. B. Worsham, S. Davidson, W. H. Featherston, and C. W. Easley, all resident citizens of Clay county, instituted this suit against appellant, also of that county, upon his promissory note, dated May 20, 1892, payable to their order, in the sum of $857.50, besides interest and attorney's fees. They also sought to foreclose a real-estate mortgage or deed of trust dated May 26, 1892, and executed to better secure this note. Appellant admitted their right to recover, unless it should be defeated by the matters set up in his plea of failure of consideration. The amount of the note sued on was equal to the total amount of principal and interest of two other notes previously executed by appellant, and referred to below, — one for $700, and the other for $100. A mortgage was made contemporaneously with the execution of the $700 note, to secure its payment, upon the same property afterwards covered by that of May 26, 1892. The mortgage declared on contained the following recital: "That I, L. C. Barrett, of the county of Clay and state of Texas, for and in consideration of the sum of $857.50, to me in hand this day paid by Worsham, Davidson, Featherston, and Easley, of said county and state; and for and in consideration that they have this day, and do by these presents, release me of and from the payment of certain obligations due from me, to the amount of $800 and interest, payable to the Red River & Southwestern Railroad, this being the real and only consideration, together with the debt and trust hereinafter mentioned; and that by the acceptance of this obligation the said C. W. Easley, trustee, together with the said Davidson, Worsham, and Featherston, do hereby release a certain trust deed to secure $700 and interest, dated 5th day of February, 1891, covering the lands and lots hereinafter described, to the said Easley, trustee, * * * which said trust deed was made to secure $700 and interest, the real consideration of this instrument,—have granted, bargained, sold," etc. The contention of appellant was that the last note had been obtained by means of false and fraudulent representations, to the effect that appellees had made arrangements with the Union Trust Company to procure money with which to complete the building of a railroad from the town of Henrietta to the town of Archer, alleging that he had given the note upon that representation as a matter of accommodation, to enable them to procure the money to complete the road. He further alleged that he had been fraudulently induced to sign the previous notes upon the faith of their representations and promises that the railroad between the points named would be speedily built, or, at least, within a reasonable time, by them and the Red River & Southwestern Railroad Company. Appellant also reconvened for the value of his services in assisting to raise the bonus.

We find the following conclusions of fact:

(1) That appellees, with E. H. East, of Archer, and others, in the latter part of the year 1890, obtained a charter under the name above indicated, to construct and operate a railway from the Red river to the Concho river, through Clay, Archer, and other counties.

(2) That, in the early part of January of the following year, they made a proposition in the name of said Red River & Southwestern Railway Company to the citizens of Henrietta, which was accepted by appellant and other subscribers, in the terms following:

"Henrietta, Texas, January 3, 1891. To the Board of Trade and Citizens of Henrietta: Proposition of the Red River & Southwestern Railroad Co. to the citizens of Henrietta, Texas: If the citizens of Henrietta and Clay county will give a subsidy of $30,000, right of way through Clay county, and depot grounds in Henrietta, the above-named railway company will begin work on a road from Henrietta to Archer City within sixty days from the time said subsidy is raised. Said subsidy is to be secured by bankable notes, and payable proportionately as each five miles of the grade is completed to the Clay county line. C. W. Easley, Secretary. E. H. East, President.

"We, the undersigned, agree to pay the amounts written opposite our respective names, and accept the above proposition. [Here follows list of names, including that of appellant, with $500 placed opposite it, which seems to have been increased afterwards to $800.]"

(3) That some time towards the latter part of February thereafter, upon the bonus being subscribed, the notes of numerous subscribers were executed in accordance with the terms stated above, payable as each five miles of the grade should be completed. There is a conflict in the evidence as to whether the notes executed in the first instance by appellant provided for payment as the road was "graded," or as the road was "completed"; the evidence preponderating, as we think, in favor of the former condition. But the undisputed testimony shows that if their payment was conditioned on the completing of the road, and not of the grade, the defendant knew of that fact at the time he executed the note and mortgage sued on.

(4) That the road was graded as proposed between the points named. There is a slight conflict in the evidence as to whether this grade was completed. But, if it was in any sense incomplete, the undisputed evidence shows that the appellant knew the condition of the grade when he executed the instruments sued on. These were executed long after work on the grade had ceased, and after the grades had been in all substantial respects completed, according to the decided preponderance of the testimony.

(5) That appellees furnished the money to grade the road from Henrietta to the county line, and East thence to the town of Archer, in consideration of which the railway company assigned the Henrietta subsidy to appellees, and the Archer subsidy to East, the amount so paid by them, however, exceeding the value of the subsidy.

(6) That the sole consideration of the note and mortgage declared on was as specified in said mortgage.

(7) That no fraudulent misrepresentations or promises whatever were made to appellant to obtain either the original notes or the substituted note.

The verdict of the jury, on issues submitted by the court, establishes conclusions 6 and 7; and a contrary verdict on the issues involved in these conclusions would, in our opinion, have been contrary to the manifest weight and great preponderance of the testimony.

Conclusions of Law.

Appellant's assignments of error are quite voluminously stated, but the real issues in the case, we find, after diligent search, are not very numerous. The whole 41 assignments will consequently be grouped and disposed of under four heads, as follows: First, the judgment on the demurrers; second, the admission and exclusion of evidence; third, the charges given and refused; fourth, the cross action.

1. We dispose of the errors assigned to the rulings on the demurrers by adopting the following counter proposition from appellees' brief: "If the court erred in sustaining appellees' exceptions to appellant's answer, such error was without prejudice, since the matters and facts excepted to were plead in other parts of the answer, and evidence in support thereof was introduced by appellant, and such error, if any there be, will not necessitate a reversal of the case."

2. There was no error in admitting in evidence the original answer of defendant below, which had been prepared and sworn to by him, though it had been superseded as pleading by amendment. The able and exhaustive opinion of Judge Elliott in the case of Boots v. Canine, 94 Ind. 408, reviewing the authorities, and giving unanswerable reasons why such evidence is admissible, should put this question at rest. This opinion clearly demonstrates that, on principle, under every system of pleading where fiction is abolished and the pleader is required to truly state the facts, such statements, when made with the knowledge of the party himself, and not merely by his attorney, are, like any other admissions, competent, though not conclusive, evidence against him; and that in the states where the code practice prevails the courts are, consequently, unanimous on the right to introduce such admissions in evidence, with the possible exception of California, where the decisions are in conflict. It also conclusively demonstrates that this rule is applicable to a pleading which has been superseded by amendment, whether offered in evidence upon the trial of the case in which it was originally filed or in some other case. Upon this subject the following language is used: "We should feel that we were doing an idle thing if we should undertake to cite authority upon the proposition that a party cannot be deprived of his right to give in evidence an admission because the latter had withdrawn it. Even in criminal cases, an admission made by the accused before the examining magistrate is not rendered incompetent by a subsequent withdrawal. The withdrawal of an admission may, in proper cases, go in explanation, but it cannot change the rule as to its competency. We have never, until the argument in this case, known it to be asserted that the withdrawal of a confession or an admission destroyed its competency as evidence against the person making it. If it did, then criminals might destroy evidence by retraction, and parties escape admissions by a like course. The law tolerates no such illogical procedure. It is proper to show the withdrawal and all...