Boren v. Boren

• Decision Date: 23 April 1902
• Citation: 68 S.W. 184
• Parties: BOREN v. BOREN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

68 S.W. 184

BOREN v. BOREN et al.¹

Court of Civil Appeals of Texas.

April 23, 1902.

Appeal from Ellis county court; J. E. Lancaster, Judge.

Action by J. S. Boren against T. P. Boren and another. Judgment for plaintiff, and T. P. Boren appeals. Affirmed.

T. H. Collier, for appellant. J. B. Bisland, for appellees.

FLY, J.

This is a suit instituted by J. S. Boren against appellant and J. W. Bardwell to recover a debt of $550, with interest and attorney's fees, against T. P. Boren, and for $275 against J. W. Bardwell, and for the foreclosure of a mortgage on four mules, given by T. P. Boren. The cause was submitted on special issues to a jury, and on their findings the judgment was rendered in favor of J. S. Boren for the amounts prayed for by him against the respective parties, and for the foreclosure of the mortgage. On hearing the motion for new trial the court eliminated the usurious interest that had been allowed in the judgment, and rendered judgment for $580.31. This appeal was perfected by T. P. Boren.

It was established by the facts that in 1897 W. A. Griggs loaned T. P. Boren $400, and to secure its payment took his promissory note for $450, with J. S. Boren and J. W. Bardwell as sureties. The note was dated September 11, 1894, and was due on October 1, 1898. The $50 was added in as interest on the $400. The note provided for 10 per cent. attorney's fees. When the note became due, it was paid off by J. S. Boren, the amount paid being $550. The $50 added to the note rendered it usurious, and it was admitted by J. S. Boren that he knew that the interest was usurious before he paid it, and there is nothing in the record to show that he did not know it when he signed the note as surety. To secure the sureties in the event they were compelled to pay the note, appellant executed to them a mortgage on four mules, and there was a provision for 10 per cent. attorney's fees in case of suit. In the mortgage the debt to Griggs is described as being for $430, instead of $450, but the true date of the note and time of maturity are given. Appellant was required to answer, over his objection, that the mortgage was intended to secure the sureties in the payment of the Griggs note. This is presented as error, the ground of objection being that parol evidence was inadmissible to add to, take from, or explain a written instrument. We think the testimony was admissible to correct what was clearly a mistake as to the amount of the Griggs note, and show the true consideration. Mead v. Randolph, 8 Tex. 191; Hicks v. Morris, 57 Tex. 658; Taylor v. Merrill, 64 Tex. 494. No allegation of fraud, accident, or mistake was necessary as a basis for the proof of the true consideration. Taylor v. Merrill, above cited.

Appellant's objection to the testimony of J. S. Boren that he paid the note in money and a check for $210, on the ground that the check was the best evidence, is without merit. Griggs swore that the note had been paid, and there was no controversy on that question.

It follows from what was said in regard to the discrepancy between the amount of the note named in the mortgage and that set out in the note that the mortgage was intended to secure the payment of the debt indicated by the note. That such was the case is demonstrated by the uncontradicted evidence; and, although the jury found that the mortgage was not given to secure the Griggs note, the court, in view of the testimony, did not err in ignoring such finding, and rendering a judgment sustained by all of the facts. The jury may have thought that the court wanted a finding as to whether Griggs was secured in his debt by the mortgage, and could truthfully answer that he was not. Appellees were so secured, and the court properly foreclosed the mortgage...