Blount v. Ralston
| Decision Date | 01 January 1857 |
| Citation | 20 Tex. 132 |
| Parties | R. S. BLOUNT AND ANOTHER v. JOSEPH RALSTON. |
| Court | Texas Supreme Court |
Where a promise to pay money at six months' time contained a clause that it might be discharged in lumber, if delivered according to contract; and at the same time the payee gave his promise in writing to take lumber in payment of said note, at a certain price, reciting that the maker of the note agreed to saw said lumber at any time the payee might want it, within six months, at his mill near by, and to give the payee's bill the preference over other bills that might be to saw; the lumber not to be required until within a reasonable time after the maker's mill should be put to work; held, that the last clause did not extend the time for payment in lumber beyond the six months; and the mill not having been put to work within the six months, it was further held that the note became payable in cash absolutely, without demand for the lumber.
An averment that the plaintiff is the owner and holder of the following note made and executed by the defendants, giving a copy, is equivalent to an allegation that the note was made and delivered by the defendants to the person whose name appears in the copy as payee. 4 Tex. 452;22 Tex. 609;
24 Tex. 158, 160, 283; 25 Tex. S. 382; 28 Tex. 543, 545, 798.
Error from Washington. Tried below before the Hon. R. E. B. Baylor.
The petition alleged that the plaintiff was the owner and holder of a certain promissory note, made and executed by R. S. Blount and John H. Graves, in substance as follows: (Here followed a copy of the note), which said note was by the said John P. Collins duly endorsed, etc. The allegation of plaintiff and proof as to the failure to put the mill to work, extended not merely to the maturity of the note, but to the then present time. The other facts are stated in the opinion.
Giddings & Giddings, for plaintiffs in error. Although the note fixes a definite time for payment, yet when it is taken in connection with the contract to which it refers, the defendants were to have a reasonable time after the mill was put to work, to furnish the lumber; the $300 was payable in lumber at an indefinite time, at a fixed price. Hence the case does not come within the principle decided in Baker v. Todd, 6 Tex. 273.
The plaintiff ought to have been required to show that defendant had not used due diligence in putting his mill to work, or that he furnished a bill of the lumber and made a demand for it at Independence, where the contract was made. The instructions were clearly erroneous.
Bassett & Bassett, for defendant in error.
Defendant in error brought suit against the plaintiffs in error, on the following instrument in writing:
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¦$450.¦INDEPENDENCE, March 28, 1855.¦
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Six months after date we promise to pay John P. Collins four hundred and fifty dollars, with ten per cent. per annum interest, for value received. A part of this note to be paid in lumber if delivered according to contract. (Signed by defendants.)
Defendants set out the following instrument in their...
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Miles Realty Co. v. Dodson
...461; Moody v. Benge, 28 Tex. 545; Colbertson v. Beeson, 30 Tex. 76; Ross v. Breeding, 13 Tex. 17; Jennings v. Moss, 4 Tex. 452; Blount v. Ralston, 20 Tex. 132; Barnard v. Moseley, 28 Tex. 543; Parr v. Nolen, 28 Tex. 798. And this court recently so held in Commercial Credit Co. v. Moore (Tex......
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Johnson v. Wise
...for reversal. As to the second exception, it has been held that the allegation of the execution of a note imports delivery (Blount v. Ralston, 20 Tex. 132), but the ruling did not arise upon demurrer. In Santa Fé, etc., v. Cumley, 62 Tex. Civ. App. 306, 132 S. W. 889, it was held that an al......
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Belcher v. Wilson
...TEXT STARTS HERE A petition based upon a note should aver who executed or made and delivered it. Pas. Dig. art. 1427, note 537. 4 Tex. 452;20 Tex. 132;22 Tex. 650;24 Tex. 158, 160, 283;28 Tex. 543, 545, 798;30 Tex. 76. The sheriff's return must show that he delivered to the defendant a copy......
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Morgan v. Baum
...petition was "equivalent to averring that he [defendant] had made, executed, or signed and delivered it to the plaintiff." In Blount v. Ralston, 20 Tex. 132, 135, it was held that a petition was not deficient because of the failure to allege that the note sued on was delivered where the all......