Blair v. Teel

• Decision Date: 02 January 1913
• Citation: 152 S.W. 878
• Parties: BLAIR v. TEEL.
• Court: Texas Court of Appeals

152 S.W. 878

BLAIR v. TEEL.

Court of Civil Appeals of Texas. Galveston.

January 2, 1913.

Rehearing Denied January 16, 1913.

Error to District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Action by Richard Teel against Mrs. Hannah M. Blair and husband. Judgment for plaintiff against both defendants, and Mrs. Hannah M. Blair brings error. Reformed and affirmed.

J. F. Lanier and J. D. Martin, both of Beaumont, for plaintiff in error. Greer, Nall & Bowers, of Beaumont, for defendant in error.

PLEASANTS, C. J.

This suit was brought by defendant in error, Richard Teel, against the plaintiff in error, Hannah M. Blair, and her husband, Frank Blair, Jr., to recover the sum of $1,076.89, with interest thereon from February 4, 1908, at the rate of 10 per cent., and 10 per cent. additional as attorney's fees. The $1,076.89 sued for is the balance due on February 4, 1908, upon a promissory note for the sum of $2,500, executed by the defendants on October 7, 1904, and payable to plaintiff's order three years after date, with interest from date at the rate of 10 per cent. per annum, and providing for 10 per cent. additional as attorney's fees if said note was not paid at maturity and was placed in the hands of an attorney for collection. This $2,500 was loaned by the plaintiff to the defendants.

The circumstances in which the loan was made are alleged in the petition as follows: That when said negotiations for said loan were first opened up the defendants herein informed plaintiff that they desired said money for the purposes of putting up a brick building upon property then owned by the defendant Hannah M. Blair at the corner of Pearl and Milam streets, in Beaumont, Tex.; that they were going to procure the sum of five thousand ($5,000.00) dollars and erect a small brick building on said property; that before said loan was closed defendants made other and further representations to plaintiff's agent, and represented as hereinafter set forth, on which last representation plaintiff's agent so acted; that the defendants herein also represented to plaintiff that said money so borrowed from plaintiff was for the benefit of the separate estate of the defendant Mrs. Hannah M. Blair, in that the said defendant Mrs. Hannah M. Blair then owned in her separate right, and as her separate estate, lot No. 352, in block 69, of the city of Beaumont, Jefferson county, Tex., according to the original plat of the said city; that the said Mrs. Hannah M. Blair had, prior to said time, borrowed from some party now unknown to plaintiff, and whose name plaintiff does not remember, approximately the sum of $2,500 upon said property; that the said Mrs. Hannah M. Blair, acting for herself and those authorized to represent her, advised plaintiff and his legal representative, who was authorized to loan said money for him, to wit, R. A. Greer, that the property of the said Mrs. Hannah M. Blair, above mentioned, was about to be sold to pay the indebtedness on which loan existed, as hereinbefore set forth, and the said money was desired for the purpose of paying off and discharging said debt and thereby securing to her, the said Mrs. Hannah M. Blair, further time in which to pay off said indebtedness, so as to enable her, if possible, to protect her separate property and to preserve the same for her future use and benefit.

The petition then described certain liens in favor of Mrs. Carrie M. Lucas existing upon the lot, before mentioned, on October 7, 1904, for the discharge of which liens and other debts of defendant Hannah M. Blair, for which her separate estate was liable, the $2,500 is alleged to have been borrowed by the defendant. The liens and debts so described amount in the aggregate to the sum of $2,217.16. It is alleged that this plaintiff is informed that of the money so loaned by him approximately the sum of $282.84 was turned over to Frank Blair, Jr., one of the defendants herein; that if the same was so paid to the said Frank Blair, Jr., and the defendant Mrs. Hannah M. Blair did not get the benefit of the same, or any other portion of the money so loaned, then plaintiff says that she hypothecated lot No. 352, in block 69, to secure the money so paid to her husband, Frank Blair, Jr.; that this plaintiff sold said property last above mentioned and applied the proceeds thereof to discharging the indebtedness, if anything, for which the defendant Mrs. Hannah M. Blair was not personally liable, and for which the defendant Frank Blair, Jr., only was liable, leaving due this plaintiff the sum of $____, for which the said Mrs. Hannah M. Blair is personally liable; that this plaintiff had a right to so apply the proceeds of said property under and by virtue of the fact that the defendant Frank Blair, Jr., was insolvent, and the defendant Mrs. Hannah M. Blair did not direct how the proceeds of said property should be so applied; that under and by virtue of the representations of plaintiff in obtaining said money, and under and by virtue of the fact that the same was so obtained for the benefit of the separate estate of the said Mrs. Hannah M. Blair, said Mrs. Hannah M. Blair is obligated and bound upon the note herein sued upon, and plaintiff is entitled to recover judgment against her, as well as against her husband Frank Blair, Jr., and to have said indebtedness sued upon established as a claim upon the separate property of said Mrs. Hannah M. Blair; wherefore, premises considered, all parties being before the court, plaintiff prays that upon the trial hereof he have and recover judgment against said defendants, and both of them, for the balance of the sum so due on said note, principal, interest, and attorney's fees, together with all costs of suit, and that said indebtedness be established as a claim upon the separate estate of Mrs. Hannah M. Blair.

The defendants answered by general demurrer and general denial and by special plea, setting up the fact that defendant Hannah M. Blair was a married woman at the time the note sued on was executed, and specially denying that the money for the loan of which said note was given was borrowed or extended for the benefit of her separate estate, or for necessaries for said defendant. She also pleaded the two-year statute of limitation.

The trial in the court below, without a jury, resulted in a judgment in favor of plaintiff against both defendants. The appeal is prosecuted by Mrs. Blair alone.

The trial judge, at the request of plaintiff in error, filed the following findings of fact:

"(1) I find that the defendant Mrs. Hannah M. Blair, prior to her marriage with Frank Blair, Jr., owned in her separate right lot three hundred fifty-two (352), in block sixty-nine (69), of the city of Beaumont, and that this property continued as her separate property after her marriage with her codefendant.

"(2) I find that prior to October 7, 1904, Mrs. Hannah M. Blair had borrowed various sums of money upon her property above mentioned while she was a feme sole, and that the indebtedness and liens securing the same were owned by Mrs. Carrie M. Lucas during the year 1904, and were valid liens upon said property.

"(3) I further find that during July, 1904, Mrs. Hannah M. Blair brought an injunction suit to prohibit Mrs. Lucas from collecting the notes and foreclosing the liens upon the property described in paragraph 1; that subsequent to the time the suit was filed an agreement was entered into between Mrs. Hannah M. Blair, acting through her duly authorized agent, D. H. Hardy, the substance of which was that if the property was sold at the first sale day in October Mrs. Hannah M. Blair should have ten days after sale in which to pay off the indebtedness, and during said...