Britt v. Burghart
| Decision Date | 27 April 1897 |
| Parties | BRITT et al. v. BURGHART. |
| Court | Texas Court of Appeals |
Appeal from district court, Hardeman county; G. A. Brown, Judge.
Suit by M. Burghart against D. R. Britt and others to recover money collected for plaintiff. Judgment for plaintiff. Defendants Britt & Easton appeal. Affirmed.
S. P. Huff and Standlee & Green, for appellants. J. A. Lucky, for appellee.
Statement of the Case, with Conclusions of Fact.
On July 25, 1887, M. Burghart loaned to M. N. Sevier $2,000, for which the latter executed his two promissory notes, each for the sum of $1,000, maturing, respectively, in one and two years, with 10 per cent. interest from date, and an attorney's fee clause of 10 per cent. As a purported security for this indebtedness, Sevier executed a transfer reciting that the notes represented the purchase money, and constituted a vendor's lien upon a certain brick storehouse and lot situated in the town of Vernon, Tex. Sevier was the head of a family, and as the maturity of the first note approached he threatened to obstruct its collection with the defense that the recital of purchase money and vendor's lien contained in the transfer was false, except as to the sum of $1,029 or thereabouts, and that the property was his business homestead. Thereupon Burghart placed the notes for collection in the hands of the appellants, Britt & Easton, lawyers. As attorneys for Burghart, the appellants brought suit against Sevier on the notes, seeking to subject the property. After the pendency of the litigation for some time, the matter was adjusted in this manner: The suit was dismissed. Sevier and his wife conveyed the property to one Tennie Roberts. The latter assumed the payment of the notes, principal, interest, and attorney's fees, and secured the indebtedness, payable in monthly installments of $80, by the execution of a deed in trust upon the property. Britt & Easton collected from Tennie Roberts all of the indebtedness except $750. Of this they paid to the appellee, Burghart, the sum of $1,253.30, as he contends; the sum of $1,331.43, as they contend. The appellants declined to make further payments to Burghart, on the ground that when they undertook the collection of the notes they had an agreement with the appellee that, as it was extremely questionable whether the claim could be enforced, on account of the dangerous character of Sevier's plea, they were to be entitled to one-half of the amount which should be collected by them. On the other hand, the contention on the part of Burghart was that the appellants undertook the collection of the indebtedness with the agreement that, if they collected it without suit, he was to pay them $25; if with suit, their remuneration was to be measured by the 10 per cent. stipulation for attorney's fees provided by the notes. The appellee brought this suit against Britt & Easton to enforce the payment by them of the money collected as above indicated, and wrongfully withheld by them, as he alleges. After the execution of the deed in trust by Tennie Roberts, the latter became the wife of M. N. Sevier, who had obtained a divorce from his former wife. M. N. Sevier and his wife, Tennie Sevier, were made parties to the suit, and judgment was sought against them for the unpaid balance of $750, and for a foreclosure of the mortgage upon the property. A verdict and judgment were recovered against Britt & Easton for $704.05, and against M. N. Sevier and Tennie Sevier for the sum of $750, with interest and foreclosure. From the verdict and judgment against them Britt & Easton appeal.
In accordance with the verdict of the jury, which rests upon conflicting evidence, we find against the contention of the appellants that the contract under which they undertook the collection of the indebtedness was on the basis of 50 per cent.
1. The court, in its charge, pointedly treated the contention of the appellants to the effect that the contract of collection was for one-half of the amount, as valid, if true. The verdict of the jury as pointedly found against this contention. Hence there is no merit in appellants' complaint that the court overruled a special exception addressed by the defendants to the plaintiff's averments avoiding the contract relied upon by the defendants on the ground that it was procured by false and fraudulent representations. The court treated the defense predicated upon such contract as valid, without reference to the issue of fraud. We would be wholly justified in ignoring the first...
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