Collingsworth v. King
| Decision Date | 12 October 1955 |
| Docket Number | No. A-5268,A-5268 |
| Citation | 155 Tex. 93,283 S.W.2d 30 |
| Parties | Wayne A. COLLINGSWORTH et al., Petitioners, v. M. D. KING, III, Respondent. |
| Court | Texas Supreme Court |
Greenwood & Russell, Harlingen, for petitioners.
Kent, Brown & George, Harlingen, Tom H. Davis, III, Austin, for respondent.
The respondent instituted this suit to recover the sum of $22,307.94, and to foreclose a vendor's lien. The sum sued for included principal, interest and attorney's fees claimed to be due and owing on the vendor's lien notes numbered three and four of a series of five notes which had been executed on January 1, 1949 by M. H. Coleman in favor of Thomas S. Wallace as a part of the purchase price for certain lots or parcels of land situated in Cameron County, Texas. The notes involved were due and payable at Harlingen, Texas, on September 1, 1951 and September 1, 1952, respectively, and contained the usual acceleration clause. On August 27, 1949, M. H. Coleman and wife conveyed the property to petitioner, Wayne A. Collingsworth, and as a part of the consideration, the latter assumed payment of the balance then due and owing on the notes theretofore executed.
On June 21, 1954, the trial court entered a judgment in favor of respondent as prayed for. This judgment has been affirmed by the Court of Civil Appeals. 276 S.W.2d 556.
Respondent, M. D. King, III, a resident citizen of California, became the owner and holder of the notes sued upon by regular transfer from Thomas S. Wallace. Although the notes were due on the respective dates above stated, the respondent did not present the notes for payment until November 3, 1951. On that date the notes were received by the Harlingen State Bank with instructions from Mr. King to demand and collect the total sum of $22,023.47, which sum included interest at the rate of 10% on the principal of said notes from September 1, 1950 to September 1, 1951, and 10% attorney's fees.
The petitioners have assumed the position before the trial court, the Court of Civil Appeals and this Court that the demands made upon petitioner, Collingsworth, by respondent were excessive in that since no special place for payment had been designated in said notes for payment, and since presentment for payment had not been made until November 3, 1951, no penalties of any character could be invoked. In accordance with the defense thus raised, the said petitioner, acting by and through his agent, Stone Hargrove, tendered to the Harlingen State Bank, the agent of respondent, the sum of $19,086.51 in full payment of the principal and interest on both notes.
Petitioners contend that the trial court and the Court of Civil Appeals were in error in holding that the tender of the sum last stated was "coupled with a condition embodying a requirement of assignment of the notes and liens involved." (276 S.W.2d 558.) The respondent seeks to invoke the rule announced in the case of Wiley v. Scott, Tex.Civ.App., 229 S.W.2d 650, 651, wherein the Court said: * * *'
It is necessary at this point to discuss the evidence in order to clearly demonstrate the reasons for our conclusion that there is no evidence of probative force to support the judgment of the trial court. The trial of this case began with a jury, but at the close of all the evidence the parties entered into certain stipulations to avoid the necessity of jury findings. The stipulations contain the following: '* * * this stipulation being made without the Plaintiff (respondent) herein waiving his contention that in connection with the offer made by Mr. Stone Hargrove and hereinafter referred to, that such offer was coupled with a condition embodying a requirement of assignment of the notes and liens involved, but the stipulation being intended by the parties to avoid the necessity of Jury findings in connection with other portions of the offer made by said Hargrove * * *.'
After the Court had prepared special issues to be submitted to the jury on the question of whether or not the tender made by petitioner, Hargrove, was conditional, the parties entered into a further stipulation: '* * * It is accordingly agreed between the parties that this cause be withdrawn from the Jury and determined by the Court on the questions of law with briefs to be submitted by the respective parties presenting their respective contentions for judgment in this cause.'
No independent findings of fact or conclusions of law were filed by the trial court. The judgment contains the following recitation: '* * * the Court having considered the pleadings of all parties, the evidence introduced, and the briefs and arguments of counsel, being advised in the premises, finds that the Plaintiff, M. D. King, III, should have and recover from the Defendant, Wayne A. Collingsworth, the sum of * * * $24,173.74 for his debt and interest to the date of judgment, and his attorneys' fees * * * in the amount of * * * $2,417.37, and foreclosure of his lien.'
We cannot agree with respondent that the evidence supports an implied finding by the trial court that the tender of payment made by Collingsworth through his agent, Hargrove, was conditioned upon an assignment of respondent's lien; neither can we agree with the finding made by the Court of Civil Appeals that the stipulation stated further that the offer 'was coupled with a condition embodying a requirement of assignment of the notes and lien involved.' The stipulation clearly states that respondent was not waiving his contention that the offer of payment was a conditional tender. The issue of whether or not the tender was conditional or unconditional was to be determined by the trial court....
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Adams v. Petrade Intern., Inc.
...cited by Box in which some amount in excess of the debt, such as a "collection" fee, is demanded. See id.; compare Collingsworth v. King, 155 Tex. 93, 283 S.W.2d 30 (1955). We reject Box's contention that Petrade made a bad faith, and thus invalid, No issue concerning presentment by either ......
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