Crooker v. National Phonograph Co.

• Decision Date: 25 February 1911
• Parties: CROOKER et al. v. NATIONAL PHONOGRAPH CO.
• Court: Texas Court of Appeals

135 S.W. 647

CROOKER et al. v. NATIONAL PHONOGRAPH CO.

Court of Civil Appeals of Texas.

February 25, 1911.

Rehearing Denied March 16, 1911.

Error from District Court, Harris County; W. P. Hamblen, Judge.

Action by the National Phonograph Company against E. L. Crooker, receiver of the Texas Piano & Phonograph Company, and others. From a judgment for plaintiff, defendant W. G. Burchfield brings error. Affirmed.

John G. Tod, for plaintiff in error. Hunt, Myer & Teagle, for defendant in error.

REESE, J.

The National Phonograph Company, a New Jersey corporation, brought this suit against E. L. Crooker, receiver of the Texas Piano & Phonograph Company, a Texas corporation, and W. G. Burchfield, to recover the amount due upon 25 promissory notes, amounting, in the aggregate, to $25,000, besides interest and attorney's fees. A trial with a jury resulted in a judgment for plaintiff for $25,437.39. Defendant Burchfield filed a motion for a new trial, which was refused, and he brings the case to this court upon writ of error.

There is no statement of facts in the record, and the only error assigned is as to the action of the court in excluding certain testimony offered by plaintiff in error on objection of defendant in error.

The petition is in ordinary form, alleging, in substance, the execution of the notes by the Piano & Phonograph Company payable to plaintiff, and that at the same time they were executed by the said Burchfield by signing his name on the back thereof. The first 20 of said notes were for $750 each, maturing as follows: April 13th, 18th, 25th; May 2d, 9th, 16th, 23d, 29th; June 6th, 13th, 20th, 27th; July 2d, 7th, 10th, 14th, 17th, 20th, 25th, 30th. The last five of the notes were for $2,000 each, due August 4th, 6th, 8th, 10th, 13th, all in 1908, and each of the notes dated April 10, 1908. It is alleged that Burchfield, who signed said notes at the time of their execution, is jointly liable for their payment. On the same day and simultaneously with the execution of the notes, the said Piano & Phonograph Company and Burchfield executed the following agreement: "On this, the 10th day of April, 1908, we executed twenty-five (25) notes payable to the order of the National Phonograph Company, twenty (20) of said notes being for seven hundred fifty ($750) dollars each and maturing from April 13th to July 30th, 1908, and five (5) of said notes being for two thousand ($2,000) dollars each, and maturing from August 4th to August 13th, 1908. In connection with the execution of said notes, and the agreement on the part of the National Phonograph Company to accept the same in extension of the indebtedness we are now due them, we agree hereby that if default shall at any time be made in the payment of any one of said notes of said series, such default shall mature all of said notes, at the option of the holder. It is further agreed, that if said notes or any of them are not paid at maturity, and are placed in the hands of attorneys for collection, or suit is brought thereon, then 10 per cent. additional on the principal and interest shall be added thereto as attorney's fees. This instrument is executed and made part of the series of notes of even date herewith." It was further alleged that each of the first six notes maturing was presented for payment, which was refused and they were duly protested. There were the usual allegations that notes had been all declared due, as authorized by the agreement, that they had been placed in the hands of an attorney for collection, upon a contract to pay him 10 per cent. attorney's fees, which was a reasonable attorney's fee. The suit was instituted July 2, 1908, at which time 12 of the notes, aggregating $9,000, were due.

Plaintiffs in error pleaded certain payments which were not disputed, being the amount of certain merchandise delivered to defendant in error, for which proper credit was given. In addition, plaintiffs in error pleaded that the consideration of the notes had failed, in this: that the Piano & Phonograph Company was indebted to defendant in error in the sum of $25,000 overdue, and that it was not able to pay the same, whereupon the agent of defendant in error agreed that the Piano & Phonograph Company execute the notes aforesaid, and that plaintiff in error Burchfield, who was secretary of the corporation and owned a majority of its stock, should also indorse the same, which was done. But it is further alleged that as an inducement for plaintiff in error signing the notes the said agent agreed that, if the Piano & Phonograph Company would execute the notes, and plaintiff in error would endorse same by writing his name on the back of the same, thereby guaranteeing their payment, defendant in error would accept the notes, thereby granting the maker an extension of time upon its debt, then due, to the several maturity dates of the notes, and that the said agent of defendant in error promised plaintiff in error, as an inducement to get him to indorse the notes, as aforesaid, that defendant in error would receive from the Piano & Phonograph Company as payment on said notes the goods which it had on hand, purchased from defendant in error, and the shipment of said goods should begin before the first note should fall due, and that when the goods were shipped back by the Piano & Phonograph Company, same should be credited upon the notes in the order of their maturity. It was also alleged that as a further inducement to procure plaintiff in error to indorse the notes the said agent promised him that said notes should not be presented through any bank for collection, or protested, without notice thereof being given in advance to the Piano & Phonograph Company, and that when...