Brown v. Hewitt, 10981.

• Decision Date: 09 May 1940
• Docket Number: No. 10981.,10981.
• Citation: 143 S.W.2d 223
• Parties: BROWN et ux. v. HEWITT et al.
• Court: Texas Court of Appeals

143 S.W.2d 223

BROWN et ux. v.HEWITT et al.

No. 10981.

Court of Civil Appeals of Texas. Galveston.

May 9, 1940.

On Rehearing August 1, 1940.

Rehearing Denied October 3, 1940.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by David L. Brown and wife against George W. Hewitt and others, to enjoin the defendants from exercising the power of sale contained in a note and deed of trust.From a judgment refusing an injunction, the plaintiffs appeal.

Reversed and remanded with instructions to issue injunction.

Hardway, Woodruff & Austin, of Houston, for appellants.

Fitzpatrick & Wells, of Houston, for appellees.

GRAVES, Justice.

This appeal is from a judgment of the 55th District Court of Harris County, sitting without a jury, refusing to enjoin the appellees, on appellants' application, from exercising the power-of-sale contained in a $6,620.14-note and deed-of-trust upon a portion of Lots 9 and 10 of Magnolia ParkSubdivision No. 1 in Houston, which the latter had executed and delivered to the former on May 25 of 1937; other incidental relief, such as appellants' claim for the value of an abstract of title to such property the appellees held, was also refused, and the court further fixed $500 as a reasonable attorneys' fee for the services appellees' attorneys had rendered them in connection with such note, but specifically provided that no execution should issue against appellants for that item.

At appellants' request, the trial court filed, as in support of its judgment, these findings of fact and law, which are not challenged in any respect deemed material upon this appeal, to-wit:

"Findings of Fact.

"1.On the 1st day of January, 1937, and at all times subsequent thereto, the plaintiffs were and are the owners of the real estate in controversy, occupying and using the same for domestic purposes and the same was and is their residence and business homestead.

"2.Commencing in February, 1933, plaintiffs became indebted to the defendant, Geo. W. Hewitt, in a large sum of money secured by a lien upon said real estate and continued so indebted, but steadily reducing said indebtedness by regular monthly payments to the defendant, until the 25th day of May, 1937, at which time by agreement of the parties the balance owing on said indebtedness was increased by approximately $2,500.00 to cover the costs of improvements upon said premises, the amount of such increase being advanced by Geo. W. Hewitt upon a valid mechanic's lien contract, and the plaintiffs then executed and delivered to said defendant their certain promissory note, and deed of trust to G. W. Hewitt, Jr., Trustee, for the total of such combined amounts, being $6,620.14, with interest thereon at 8% per annum until paid and being payable in monthly installments of `not less than $90.00 each', due on the 10th day of each month after date until paid in full, and further containing the usual optional accelerating maturity and 10% attorney's fee clauses in event of default in payment.

"3.That contemporaneously with the execution and delivery of said note and deed of trust, plaintiffs delivered certain abstracts, described in plaintiffs' petition, of the reasonable and actual value of $200.00 to defendant, who agreed to return them when his lien was completely discharged.

"4.Thereafter between the 14th day of each month in which an installment was due and the 3rd day of the following month (with the exception of the August, 1938, installment which was paid on the 10th)the plaintiffs, without complaint or objection by defendant as to the time, amount, or manner of payment, paid monthly installments of $90.00 each during the months of June-December, 1937 and January-August, 1938, to Geo. W. Hewitt by their personal checks mailed to him at his office and the same were accepted and credited on plaintiffs' indebtedness to him, and that Hewitt was estopped from accelerating the maturity of the note simply for failure to pay on time.

"5.During the month of October, 1937, Hewitt protested to plaintiffs about their buying insurance on their property in dispute other than through his office, and advised them if they bought elsewhere `they need expect no more favors from him'.They bought elsewhere.

"6.On August 18, 1938, A. T. Norman, now deceased, who was acting for the Browns, advised Mr. Hewitt by letter that the Browns were preparing to pay off their loan and requested Mr. Hewitt to furnish him the correct balance owing Mr. Hewitt.Mr. Hewitt did not furnish such information, and Norman later called Hewitt on the phone and asked permission to examine the ledger account, which Hewitt refused.I find that Hewitt had a right to expect that the Browns expected to pay by the next installment date.

"7.On September 14, 1938, the plaintiffs mailed their check in the amount of $90.00 for the September installment to Mr. Hewitt, who on the same day, it seems, had placed said note in the hands of his attorneys, Fitzpatrick & Wells, for collection and declared the whole amount thereof due and payable but did not agree to pay them the 10% attorneys' fee provided for in said note.On September 15, 1938, defendant received plaintiffs' check and immediately returned the same to them by letter, stating he had elected to declare the whole remaining balance due and payable, plus interest at 10% per annum from September 10 on, unless the entire amount thereof, plus 10% thereof as attorneys' fees, was immediately paid he would commence foreclosing under the deed of trust.

"7a.After the tender, referred to above, Hewitt through his attorneys on October 7, 1938, offered in writing that Hewitt would carry the loan until the original date of maturity at the same rate of interest and would reduce the monthly payments to $85.00 per month, provided the papers were rewritten to eliminate the `on or before' clause, and if Brown would pay the cost of preparing the papers, and I conclude that he intended and the parties understood that if this were done the acceleration would be waived, waiving of course the claim for attorneys' fees.I find that Hewitt did not expressly promise to pay his attorneys any fees for the collection of the note, but having heard testimony of the services, I have, for the benefit of the record, found that the services rendered and to be rendered are worth $500.00.

"8.No demand for payment of the September installment was ever made by Hewitt on plaintiffs.

"9.At all times prior to receiving the letter from Hewitt's attorneys on September 16th returning their check, the Browns believed and relied on the acts and statements of defendant contained in Finding 4, and, but for such conduct on the part of the said Geo. W. Hewitt, they could and would have paid the September installment on September 10th.

"10.The correct balance unpaid but not due on Hewitt's note on August 15, 1938, was $5,895.14, including principal and accrued interest.

"11.On September 23, 1938, plaintiffs again tendered the $90.00 installment for September and offered to pay in addition any penalty upon said installment, if any, which defendant claimed and was entitled to.This tender was also refused, the defendant insisting on the full amount of principal, interest and attorneys' fees, amounting in all to approximately $6,500.00.

"12.October 7th and again on October 10, 1938, plaintiffs tendered to defendant at his lawyers' office the sum of $5,967.42, and demanded a release or assignment of defendant's lien and also the abstracts in defendant's hands; which tenders were rejected by defendant for the reason that he had elected to declare the full amount due and had placed the note in the hands of his attorneys for collection.At the time of refusing these two tenders defendant offered to waive all penalties and continue the loan paying out at $85.00 per month and 8% interest if plaintiffs would agree to eliminate the `not less than' clause in the note and pay all costs of preparing new papers.Defendant refused to surrender the abstracts.

"13.Plaintiffs at expense of $250.00 obtained the $5,967.42 tendered to defendant by agreeing to pledge the property in controversy as security therefor, and a short time after the money had been tendered and refused, and after defendant had refused to execute a release or assignment of his lien, plaintiffs were obliged to return the money to the lender.Hewitt had no notice of this, so far as the evidence discloses, until the trial.

"14.At all times since September 14, 1938, and on trial the defendant has consistently declined (except as contained in his counter-tender) to accept any sum less than the full amount of unpaid principal, accrued interest at 10%, and plus 10% attorneys' fees on the full amount; or to execute an assignment of his lien.

"15.On October 5, 1938, G. W. Hewitt, Trustee, at the request of Geo. W. Hewitt, posted the property involved for sale in November, 1938, under the powers of the deed of trust and was proceeding with the sale of same when enjoined by a temporary writ issued out of this cause on the application of plaintiffs.Defendants had no prior notice of the granting of the writ before service upon them.

"16.Defendants at all times knew where the Browns...