Cauble v. Cauble

• Decision Date: 16 November 1927
• Docket Number: (No. 7159.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 2 S.W.2d 967
• Parties: CAUBLE v. CAUBLE et al.
• Court: Texas Court of Appeals

2 S.W.2d 967

CAUBLE v. CAUBLE et al.

(No. 7159.)^*

Court of Civil Appeals of Texas. Austin.

November 16, 1927.

Rehearing Denied December 21, 1927.

Appeal from District Court, Tom Green County; J. F. Sutton, Judge.

Suit by C. M. Cauble, for whom was substituted W. H. Cauble, independent executor of his estate, against George C. Cauble, Jr., I. B. Cauble, and another. From a judgment in favor of the named defendants, plaintiff appeals. Affirmed.

J. A. Templeton, of Fort Worth, and Collins & Jackson, of San Angelo, for appellant.

Goree, Odell & Allen and L. L. Gambill, all of Fort Worth, and Anderson & Mobley, of San Angelo, for appellees.

BLAIR, J.

A complete statement of the transactions out of which this litigation arose will be found in the opinion of this court on a former appeal of the case, reported in Cauble v. Cauble, 283 S. W. 914. Suffice it to state here that W. B. Currie sued G. C. Cauble, Sr., G. C. Cauble, Jr., and I. B. Cauble, in the district court of Howard county, on their joint note to him, and to foreclose a chattel mortgage on cattle given by G. C., Sr., and G. C., Jr., to secure the note and to subject other collateral security to its payment. Pending the Currie suit, C. M. Cauble purchased the cattle, under an agreement with Currie that if Currie would release his mortgage on the cattle and deliver to him a $8,000 vendor's lien note, executed by G. C., Jr., to G. C., Sr., and pledged as collateral to the Currie note, he (C. M. Cauble) would pay the Currie note in full, which he undertook to do by giving two drafts, one of which was paid, but the other, for $8,610, was turned down by the bank on which it was drawn; whereupon Currie amended his petition and sued C. M. Cauble on his assumption agreement, alleging the above facts, and continued to sue the three other Caubles on their note, alleging that they failed to pay the $8,610 balance due through the arrangement with C. M. Cauble, as they agreed to do. C. M. Cauble was duly served with citation and copy of the petition, and all defendants were notified of the date of hearing, and with the exception of I. B. Cauble each made default. I. B. Cauble appeared and filed a cross-action against his co-defendants, alleging that he was only a surety on the Currie note, and, as to C. M. Cauble, that when he purchased the cattle and obtained a release of the mortgage and collateral security note he assumed and agreed to pay the Currie indebtedness, and thereby became primarily obligated to do so. No citation was issued on the cross-action suit. On the hearing Currie recovered judgment against C. M. Cauble on his assumption agreement and against the other Caubles on the note. I. B. Cauble recovered judgment on his cross-action against his codefendants, on the grounds alleged, his judgment providing that if he should be compelled to pay the Currie judgment, then he should recover a like amount against his codefendants. Some few days after these judgments were taken, and before the adjournment of the term at which they were rendered, C. M. Cauble and his attorney came to Howard county for the purpose of answering in the suit, and learned of the judgments. They immediately went to see G. C. Cauble, Sr., who lived in Tom Green county, for the purpose of getting him to join in a motion to set the judgments aside, but he prevailed upon C. M. Cauble not to do so, and executed to C. M. Cauble his note for $8,000, secured by a mortgage on personal property, in consideration of his not filing such a motion. As to this transaction, C. M. Cauble testified that the note was given to indemnify him against having to pay the judgment and in consideration of his not filing a motion to set it aside. G. C. Cauble, Sr., testified that it was given in full settlement of the agreement of C. M. Cauble to fully pay off and discharge the judgment. On the day following the execution of this note, C. M. Cauble returned to Howard county, and, in company with I. B. Cauble, went to the office of Currie's attorney, Currie being present, and began negotiations for the payment of the judgment in favor of Currie. C. M. Cauble pointed out an error in the amount of the judgment, which Currie's attorney agreed to and obtained an order of the court to correct it. C. M. Cauble then paid $2,011 on the judgment, and agreed to pay the balance within a specified time; and he later paid the entire judgment, but not within the time agreed upon. Thereafter he sued the three Caubles who signed the Currie note in the district court of Tom Green county, alleging by way of confession and avoidance the Howard county judgment in favor of Currie and its payment as the basis of his suit; that is, he alleged:

"Thereafter, on to wit, the 29th day of December, 1919, said plaintiff, W. B. Currie, by his amended petition filed in said cause, made said C. M. Cauble a party defendant therein, and he, by his said petition, sought to recover against him as well as against the other defendants in said action, the balance so owing by such other defendants on said note, including principal, interest and attorney's fees. Said suit, in so far as it was against C. M. Cauble, was based and predicated on the allegations made in said petition to the effect that he, in purchasing said cattle, had contracted and agreed to assume and pay the balance so owing on said note, which allegation was untrue in fact."

He further alleged that as between himself and the three Caubles who signed the Currie note, he was in truth and in fact not liable for the indebtedness, but as between them he merely agreed to assist in raising the $8,610 balance due on the note; that the $8,000 vendor's lien note and the $8,000 chattel mortgage note were assigned and executed to him as an indemnity against having to pay the balance due on the Currie note or judgment; and that his failure to pay the $8,610 draft given by him to Currie was due to the failure of defendants Cauble to make the requisite financial arrangements to take up the draft as they agreed to do, and he sought to recover: (1) Against the three Caubles the amount paid by him to discharge the Currie judgment; (2) against G. C., Sr., the amount of the $8,000 note of February 10, 1920, and to foreclose the chattel mortgage securing it; and (3) against all defendants to foreclose the vendor's lien securing the G. C., Jr., $8,000 note.

G. C. Cauble, Jr., and I. B. Cauble, answered that the Howard county judgments were res adjudicata of all issues raised by C. M. Cauble's pleadings against them, and, further, that C. M. Cauble, in consideration of purchasing the cattle and obtaining the release of the $8,000 vendor's lien note, assumed and agreed to pay off the Currie indebtedness, and that the $8,000 chattel mortgage note executed February 10, 1920, by G. C. Cauble, Sr., to C. M. Cauble, was in full payment or settlement of his assumption agreement.

At the conclusion of the evidence on the former trial a verdict was instructed for C. M. Cauble; from which all the defendants Cauble appealed to this court.

On the former appeal this court held that the Howard county judgments were not res adjudicata as between the parties on the issues raised by the pleadings and evidence, but reversed and remanded the cause on the grounds that the pleadings and evidence raised the following jury issues: (a) Did C. M. Cauble agree to assume and pay off the Currie indebtedness when he purchased the cattle; (b) and agree to release I. B. Cauble from further liability thereon; (c) did G. C. Cauble, Sr., execute the $8,000 chattel mortgage note in full settlement of C. M. Cauble's agreement to assume and pay off the Currie judgment.

On the second trial these issues were submitted to the jury and they answered each of them in the affirmative, and judgment was rendered for G. C. Cauble, Jr., and I. B. Cauble, from which W. H. Cauble, the independent executor of C. M. Cauble, who entered the suit and adopted the former pleadings of C. M. Cauble, deceased, has appealed.

On the issue of whether C. M. Cauble agreed, in consideration of the purchase of the cattle, to assume and pay off the balance due on the Currie note, the same evidence upon which we reversed and remanded the case on the former trial was introduced. There was also introduced other testimony tending to support the contention that he did agree to assume and pay off said indebtedness and to release I. B. Cauble from liability thereon; and we overrule appellant's contention that the evidence does not support the jury's findings.

The principal attack made by appellant...