Carter v. Ware Commission Co.

• Decision Date: 03 April 1907
• Citation: 101 S.W. 524
• Parties: CARTER et al. v. WARE COMMISSION CO. et al.
• Court: Texas Court of Appeals

101 S.W. 524

CARTER et al. v. WARE COMMISSION CO. et al.

Court of Civil Appeals of Texas.

April 3, 1907.

Appeal from District Court, Uvalde County; R. H. Burney, Judge.

Action by L. S. Carter and others against the Ware Commission Company and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

I. L. Martin, L. Old, and F. M. Milam, for appellants. Cowan, Burney & Goree and G. B. Fenley, for appellees.

JAMES, C. J.

This suit was brought by appellants to cancel a $6,500 note and a deed of trust securing same, given by appellant L. S. Carter to appellee. Plaintiffs allege substantially that about March 1, 1906, said L. S. Carter and the defendants entered into a verbal contract by which the former was to buy stock and ship same to defendant commission company to be sold by them; they to advance Carter without security all money necessary to purchase the stock and to accept as their compensation the customary commission, and Carter to stand all losses, if any, and to accept as his compensation what profits remained after paying all expenses, inclusive of said commissions. That thereupon plaintiff contracted with G. B. and J. C. Finley for 1,300 steers, which contract required a forfeit payment of $6,500, and Carter drew a sight draft on defendant for that sum, which was paid. That on April 17th defendants represented to L. S. Carter that it would be necessary for him to give security for further moneys in respect to said cattle purchase, and represented and promised plaintiff that if he would execute to them his note for $6,500, and secure same by a deed of trust on 2,140 acres of land in Uvalde county, they would advance all money necessary in said purchase, and also all money necessary for the holding over of any of said cattle if it should become necessary to do so; and that in consideration of said "promises and representations," and relying on same, and believing them true and made in good faith, he executed the note and deed of trust. That defendant refused to advance him any money whatever for any purpose, and he was thereby forced to cancel his contract with Finleys, and, nevertheless, defendants demand payment of said note and the enforcement of the deed of trust. Further, that, by reason of the failure of defendants to advance him funds according to the contract, the consideration of the note and deed of trust has totally failed, and that same are now without any consideration whatever. Also that part of the land (200 acres) was homestead of plaintiffs at the time of the execution of the deed of trust. Plaintiffs' prayer was: "That the court try the issue of total failure of consideration of said note and deed of trust, and on final hearing hold them for naught and cancel same and remove the cloud from plaintiffs' title to said land caused thereby, and that the temporary injunction granted be made perpetual." Defendants pleaded general denial, and filed a cross-bill against L. S. Carter for judgment on the note, interest and attorney's fee, and for foreclosure of said deed of trust, and also for the sum of $295 claimed to be due by Carter on open account for loss on cattle shipped. The court charged the jury to find in favor of plaintiffs as to the 200 acres claimed as homestead, and in favor of defendant on the note with foreclosure on the land, except the homestead, and also for the amount of the open account.

App...