Bexar Bldg. & Loan Ass'n v. Newman

• Decision Date: 20 December 1893
• Citation: 25 S.W. 461
• Parties: BEXAR BLDG. & LOAN ASS'N v. NEWMAN.
• Court: Texas Court of Appeals

25 S.W. 461

BEXAR BLDG. & LOAN ASS'N v. NEWMAN.

Court of Civil Appeals of Texas.

December 20, 1893.

Appeal from district court, Bexar county; George N. Noonan, Judge.

Action by F. J. Beitel against Esther Newman and the Bexar Building & Loan Association on a note, and to foreclose a vendor's lien. There was a judgment for plaintiff against defendant Newman, and for foreclosure, and a judgment in favor of defendant Newman against the association. The association appeals. Reversed.

Wm. Aubrey, for appellant. Leo Tarleton, C. A. Keller, and Summerlin, Wise & Halton, for appellee.

JAMES, C. J.

F. J. Beitel brought suit against Esther Newman on April 29, 1890, to recover on a $750 vendor's lien note dated June 27, 1883, and due on or before June 27, 1886, and bearing 12 per cent. interest per annum, and praying for a foreclosure of the vendor's lien on a lot in San Antonio; and on November 17, 1890, by an amended original petition the Bexar Building & Loan Association was included as a defendant, for the purposes of the foreclosure. Mrs. Newman's final pleading alleged, in substance, that after purchasing the lot, and giving said note, she became indebted to the said association in the sum of $5,000 for improvements thereon, and afterwards, on March 15, 1886, she conveyed the property to the association in consideration of the discharge of said indebtedness, the assumption by the association of said note, and the payment to her of $500 in cash, and that it was understood in said transaction that she should be released from all claim by the association or Beitel; and she prayed that, if she should be held to pay said note, she have judgment over against the association. The association pleading was filed December 4, 1890, in which it demurred to the petition on the ground that, so far as this defendant was concerned, the cause of action was barred by the statutes of two and four years; and, besides a general denial, the association pleaded limitations, and also payment by Mrs. Newman of the note sued on, and, further, that if plaintiff, Beitel, has a lien, the same was, by agreement between this defendant and Beitel, postponed to this defendant's right, and as to this defendant the same was inoperative and void. The judgment was in favor of Beitel, for $1,411.75, with 12 per cent. interest from the judgment, with foreclosure as prayed for, and judgment in favor of Esther Newman against the association, with proviso that any moneys derived from the sale should satisfy, pro tanto, the judgment in favor of the latter.

Conclusions of Fact.

(1) On June 27, 1883, F. J. Beitel conveyed a lot in the city of San Antonio to Esther Newman, the latter giving Beitel, for balance of the purchase money, a vendor's lien note for $750, payable three years thereafter, with 12 per cent. interest from date. Later in 1883, Mrs. Newman became indebted to the appellant in the sum of $5,000 for improvements on this lot, and gave it a lien on the lot and improvements. Before the association caused said improvements to be erected, F. J. Beitel agreed in writing, in consideration of such improvements to be erected, that the association's lien should be prior to his vendor's lien. (2) On March 15, 1886, the association took a conveyance from Mrs. Newman for the property; the deed expressing a consideration of $3,500, and covenants of general warranty. It appears that this last transaction was negotiated by John Ochse, the then secretary of the association, who was dead at the time of the trial, but it is not shown that he had died before the filing of the suit. (3) Mrs. Newman testified, in substance, that the consideration agreed on between her and Ochse for her conveyance to the association was that her indebtedness to the association should be canceled; that she was to surrender all her stock, and receive $500 in cash, and the association to assume payment of the note due to Beitel. In rebuttal of this testimony, the association, to show that Ochse had no authority to bind the association to assume Beitel's note, produced the minutes of the board of directors on this subject, which were as follows: "Minutes of Meeting Held March 11th, 1886. The secretary was authorized to negotiate with Mrs. E. Newman for the house built by the association, she surrendering her stock, and pass a deed to the association, paying her the sum of $500.00." Also, the testimony of the then president of the association, which was "that no special authority, that he knew of, except as shown by the minutes, had been conferred upon Ochse, to make any agreement for the association with defendant Newman, by which the association was to assume the payment of the seven hundred and fifty dollar note, and that neither he nor the board of directors knew or were ever informed, so far as he knew, by Ochse or any one else, that Ochse had agreed with Mrs. Newman that the association should assume the payment of the said note." Also, the section of the charter and by-laws defining the duties of the secretary to be to "keep strict and correct accounts with each member of the association, receive from them their monthly dues and interest, attest all orders drawn. * * * He shall have in his charge all books and papers of the association, except notes, mortgages, policies, and bonds of his office, and shall do all the correspondence of the association, and issue all articles." (4) It was shown that, at the time of the conveyance by Mrs. Newman to the association of said property, her actual indebtedness amounted to $2,100.

Conclusions of Law.

Counsel for appellee, Newman, direct our attention to the fact that the assignment of errors is not signed by counsel, and this we find verified by the record. Under the authority of Fordyce v. Dixon, 70 Tex. 694, 8 S. W. 504, the cause stands here as without any assignments of error; and it follows that the judgment must be affirmed, unless there is some fundamental error apparent upon the record. When an examination of a record is made to ascertain such error, the rule to be followed is stated by Judge Moore in Railroad v. Brownsville, 45 Tex. 91, as follows: "It is to be observed, however, that the judgment will not be reversed, in such case, for mere technical errors in the form and manner of enforcing a valid cause of action, of which the court has jurisdiction, or in the rulings of the court on questions arising during the progress of the trial, which relate to the enforcement and maintenance of the action or defense, and which do not go to its essential foundation and merits." The judgment in this case is supported by the pleadings and by the verdict; the charges, so far as they were given, submitted issues that were raised; and the court had jurisdiction; and, if fundamental error there is, it must be in the want of evidence to support the judgment. Although we do not find it to be so stated in any of our cases, we are of the opinion that, where a judgment is clearly...