Central Texas Ice Co. v. Thomas

• Decision Date: 06 January 1932
• Docket Number: No. 1302-5796.,1302-5796.
• Citation: 45 S.W.2d 181
• Parties: CENTRAL TEXAS ICE CO. v. THOMAS.
• Court: Texas Supreme Court

Page 181

45 S.W.2d 181

CENTRAL TEXAS ICE CO. v. THOMAS.

No. 1302-5796.

Commission of Appeals of Texas, Section B.

January 6, 1932.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by the Central Texas Ice Company against J. L. Thomas. Judgment in favor of the plaintiff for less than amount demanded was affirmed by the Court of Civil Appeals [29 S.W.(2d) 434], and plaintiff brings error.

Judgments of the district court and of the Court of Civil Appeals both affirmed.

Woodruff & Holloway, of Brownwood, for plaintiff in error.

Callaway & Callaway, of Brownwood, for defendant in error.

SHORT, P. J.

The only question presented by the application for writ of error in this case is whether the defendant in error, J. L. Thomas, is legally liable to the plaintiff in error to pay $1,000 which the plaintiff in error claims it was compelled to pay as an attorney's fee in order to prevent certain property, which the plaintiff in error had purchased from the defendant in error, from being subjected to foreclosure proceedings in order to collect the $1,000. The plaintiff in error paid the $1,000, according to his claim, under protest, in order to prevent its property from being subjected to foreclosure of a mortgage lien on the property. In the original suit, filed in the district court of Brown county, there are other items which the plaintiff in error claimed, but they are not involved here. The case was tried in the district court without the aid of a jury, and a judgment was rendered in favor of the plaintiff in error for $80. The original claim amounted to several thousand dollars. The plaintiff in error appealed to the Court of Civil Appeals of the Third District at Austin, where the judgment of the district court was affirmed. The opinion of the Court of Civil Appeals gives a full statement of the case, and only a brief statement is necessary to be made here. 29 S.W.(2d) 434.

The defendant in error agreed to sell, and the plaintiff in error agreed to buy, a certain ice factory in Brownwood, the purchase price being $90,000. This agreement was made on December 3, 1926. In this agreement it was stipulated that the transaction should be closed on the 15th day of December, 1926, and it was closed on that day by the defendant in error executing a warranty deed in favor of the plaintiff in error, and by the latter paying the defendant in error $15,000 in cash, and, among other things, agreeing to pay twelve certain notes, all of which were then past due, executed by the defendant in error to the Baker Ice Machine Company. These notes provided for the payment of attorney's fees, the amount not stipulated, in the event they were placed in the hands of an attorney for collection. On December 6, 1926, these notes were placed in the hands of an attorney for collection and both parties were notified that they must be paid by the 15th of December, 1926, in which event no attorney's fees would be charged, but that if they were not immediately paid, after the transaction was closed, then there would be attorney's fees charged. It is the contention of the defendant in error that the plaintiff in error agreed to take up these notes immediately after the transaction was closed, in which event there would be no attorney's fees, but that the plaintiff in error negligently failed to pay these notes immediately after the transaction was closed, waiting three days, and in the meantime suit had been instituted on the notes, and $1,000 attorney's fees which was a reasonable charge, had accrued. It is the contention of the plaintiff in error that the notes themselves, having stipulated for the payment of attorney's fees, and the conveyance which the plaintiff in error accepted to the property, having stipulated that it was to pay a certain sum to Baker Ice Machine Company, which sum was $1,000 less the amount it was compelled to pay, according to the terms of the deed it was only liable to pay the sum stipulated, and that, having been compelled to pay a larger sum, in order to protect the property from foreclosure proceedings, the defendant in error thereby became liable to it for this excess payment.

The plaintiff in error presents only two assignments of error and supports each of these with a proposition. The first proposition under the first assignment of error is as follows: "A person conveying property by general warranty deed covenants that the property is free of encumbrances except as to indebtedness recited in the deed; and the amount of indebtedness provided in the deed and assumed by the grantee not having included attorney's fees, and the attorney's fees having accrued prior to the execution and delivery of the deed, the purchaser, upon being required to pay the attorney's fees, was entitled to recover from the seller the amount so paid in excess of the amount assumed by him."

The proposition under the second assignment of error is as follows: "The trial court having found that the notes provided that the maker should pay an additional amount as attorney's fees if an attorney be employed to collect or assist in collecting them, that the notes were all past due and unpaid on December 3, 1926, that they were placed in the hands of an attorney for collection on December 6, 1926, and that a deed was executed on December 13, 1926, and delivered on December 15, 1926, it cannot be presumed, in support of the judgment, that the attorney's fees had not accrued until after the deed was accepted."

The plaintiff in error cites the following authorities in support of its propositions: Smith v. Pickham, 8...