Caudle v. Eliasville State Bank, 13355.

• Citation: 93 S.W.2d 779
• Decision Date: 17 April 1936
• Docket Number: No. 13355.,13355.
• Parties: CAUDLE et al. v. ELIASVILLE STATE BANK.
• Court: Court of Appeals of Texas

Page 779

93 S.W.2d 779

CAUDLE et al. v. ELIASVILLE STATE BANK.

No. 13355.

Court of Civil Appeals of Texas. Fort Worth.

April 17, 1936.

Appeal from District Court, Young County; Allan D. Montgomery, Judge.

Suit by the Eliasville State Bank against H. M. Caudle and another, wherein defendants filed a cross-action in the form of a counterclaim. Judgment was rendered for plaintiff after sustaining a general demurrer to the cross-action, and defendants appeal from the order sustaining the general demurrer.

Judgment affirmed in its entirety.

L. H. Welch, of Breckenridge, for appellants.

Marshall & King, of Graham, for appellee.

DUNKLIN, Chief Justice.

This suit was instituted by the Eliasville State Bank against H. M. and H. R. Caudle to recover balance due on three promissory notes executed by defendants to plaintiff. The defendants filed a cross-action in the form of counterclaim to recover of plaintiff damages for breach of its alleged parol contract for an extension of the maturity of the notes from their due dates in April and May of 1934 to October 1, 1934. The court sustained a general demurrer to that cross-action, and, upon refusal of defendants to amend, the same was dismissed. Judgment was then rendered in plaintiff's favor for the amount due on the three notes in suit, and defendants have appealed from the order sustaining the general demurrer to the cross-action.

The consideration alleged to support that oral agreement of extension was in substance as follows: Defendants' agreement to properly care for the cattle and sheep covered by the chattel mortgage theretofore executed by defendants to secure said notes, by drenching, dipping, and vaccinating; and to shear the sheep, market the wool, and sell the 1934 crop of lambs and calves and apply the proceeds therefrom upon the notes, and for reimbursement of any advances by plaintiff for expenses of such care of the stock and marketing of wool, which advancements it was further alleged plaintiff agreed to make at the time of said extension agreement.

Then follow allegations of breach of said extension agreement and damages suffered by defendants by reason thereof and for which a recovery was sought in the cross-action, with further allegations that but for reliance on said agreement defendants would have surrendered the stock to the bank at a time when plaintiff could have realized therefrom by sale on the market more than the amount of defendants' notes, but the market value thereof has later depreciated to a sum less than those notes; and further that defendants had incurred expenses for a lease to furnish grazing for the stock which they would not have incurred in the absence of the extension agreement. Also, on June 19, 1934, in violation of the extension agreement, plaintiff had applied $2,071.50 on deposit with it by defendants on their checking account to part satisfaction of said notes and, as a result thereof, their credit had been damaged by plaintiff's dishonor of several small checks drawn by defendants.

The burden was upon defendants to plead and prove a valid consideration for the alleged oral agreement of extension to support their suit for damages for breach thereof; and, if the considerations alleged were, on their face, insufficient to support that agreement, the counterclaim was subject to the general demurrer which the court sustained. Especially so since defendants assumed the burden of pleading and proving a valuable consideration to support that agreement. 10 Tex.Jur. § 289, p. 498, and decisions there cited.

The alleged oral agreement of the bank to extend the maturity of the notes to October 1, 1934, was not binding on the...