Dickson v. Kilgore State Bank

• Citation: 257 S.W. 867
• Decision Date: 30 January 1924
• Docket Number: (No. 494-3894.)
• Parties: DICKSON v. KILGORE STATE BANK.<SMALL><SUP>*</SUP></SMALL>
• Court: Supreme Court of Texas

Page 867

257 S.W. 867

DICKSON v. KILGORE STATE BANK.^*

(No. 494-3894.)

Commission of Appeals of Texas, Section A.

January 30, 1924.

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

Action by Clark Dickson against the Kilgore State Bank. Judgment for defendant was affirmed by the Court of Civil Appeals (244 S. W. 392), and plaintiff brings error. Reversed and remanded.

Lacy & Bramlette, of Longview, for plaintiff in error.

Young, Stinchcomb & Strickland, of Longview, for defendant in error.

BLANKS, J.

Clark Dickson, a customer of the Kilgore State Bank, was indebted to it on and just prior to October 18, 1920, in the sum of $4,405.35, evidenced by various notes upon which he was liable either as principal, comaker, or surety with some of his tenants. The indebtedness was secured by a chattel mortgage theretofore executed by Dickson on certain live stock and his cotton crop for the current year. The condition of his crop and the prospects of low prices for cotton were such that Dickson anticipated his inability to pay the debt out of the crop, and the bank was demanding payment. The substantial allegations of the plaintiff's petition were that on October 18, 1920, at which time $1,432 of his indebtedness to the bank was past due, F. D. Obertheir, the president and cashier of the bank, agreed with the plaintiff to the effect that if the plaintiff would mortgage to the bank, or to some one designated by it, a certain 119 acres of land, of which the testimony indicated 69 acres was the plaintiff's property and 50 acres the separate property of his wife, and thus procure $2,500, and out of such sum pay the bank the $1,432 then due, and would pay the bank interest on the remaining indebtedness until paid, the bank would extend the maturity of such balance to October 18, 1921, "unless the plaintiff elected to pay said notes prior to said 18th day of October, 1921, and accrued interest to the time of payment," and that, in reliance upon this agreement, the plaintiff and wife executed a deed of trust on such land to said cashier, as trustee, for the use of E. C. Obertheir, who appears to have been the father of the cashier, and who actually made the loan, and who the plaintiff alleged to be the party "designated" by the bank, and out of the sum so procured, paid the bank the $1,432 then due it, reserving the remainder to himself for other uses.

It appears that pending these negotiations, or shortly subsequent to them, Dickson deposited with the bank the warehouse receipts for his cotton aggregating some 30 bales, and while the mortgage held by the bank gave it general authority to sell the cotton, the plaintiff's allegation was that it was a part of this extension agreement, and the bank then so agreed, that it would hold the cotton and not sell it prior to October 18, 1921 (the maturity date of the remaining indebtedness as alleged to have been extended), unless the plaintiff elected for it to be sold sooner and the proceeds of sale applied to the extinguishment of the debt.

The allegation then follows that in September, 1921, when the cotton at such time had a market value of $3,000, the plaintiff applied to the bank for his cotton so it might then be sold for application on the debt, and the bank refused to comply with the demand, to his damage in that sum.

The answer of the bank, aside from its general denial, was an assertion of its right to sell the cotton under the terms of the mortgage and that it had a right to sell it in accordance with general custom, and did in June, 1921, sell same and placed the proceeds of sale, which the evidence shows to have been some $1,171.08, to the credit of plaintiff on his indebtedness to the bank. By an additional special answer the bank claimed a subsequent agreement between the parties made in March, 1921, by the terms of which the bank was authorized to sell the cotton in June following; that being the time it was actually sold.

Answering the special issues submitted to it, the jury found that plaintiff and the bank entered into an agreement "that said bank would hold the 30 bales of cotton delivered by Clark Dickson to said bank for a period of one year from October 18, 1920, unless the plaintiff elected to sell said cotton at an earlier date," and that the bank agreed to extend the maturity of the indebtedness to October 18, 1921, and that Dickson agreed to pay interest thereon to October 18, 1921, fixed, and that the deed of trust on the land above referred to "was given to the defendant, or to some person designated by it for its use and benefit, as a part consideration for the agreement to extend the time of payment of said notes," and further found against the bank on the issue of an agreement by plaintiff that the bank might sell the cotton in June.

The trial judge, concluding that the findings of the jury were "not supported by either the pleadings of plaintiff or the evidence," rendered judgment for the defendant, and upon the same premise the Court of Civil Appeals affirmed the judgment. 244 S. W. 392. The general question thus presented for review here is whether there are any pleadings, or any evidence, to sustain these findings, for, if there were either, the trial court was unauthorized to disregard the jury findings and render judgment non obstante veredicto. In determining this question we are required to consider the pleadings and testimony from the angle most favorable to the plaintiff (Carsey v. Hawkins, 106 Tex. 247, 163 S. W. 586; Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696; Manning v. Beaumont S. L. & W. Ry. Co., 107 Tex. 546, 181 S. W. 687), but, as the case is to be reversed and remanded, and the testimony of the plaintiff is vigorously disputed by the bank. It may be that upon another trial a different jury would resolve the issues of fact against the plaintiff, for which reason this opinion is in no sense indicative of this court's opinion, as to the issues of fact between the parties.

The plaintiff's case as pleaded rests upon the theory that there was a twofold consideration for the bank's agreement to extend the maturity of the indebtedness, viz: (1) The agreement of the plaintiff to pay interest on the debt as extended; (2) the detriment to the plaintiff arising from incumbering his land by the execution of the deed of trust, and the resultant benefit to the bank by the reduction of his indebtedness to it, and so situating the bank that it retained its original collateral for a $3,000 debt instead of a $4,400 debt, thus increasing its security.

The plaintiff's claim with reference to any agreement to pay interest was as before stated to pay such interest to the maturity date as extended, "unless the plaintiff elected to pay said notes prior to said 18th day of October, 1921, and accrued interest to the time of payment;" thus with much particularity of averment merely alleging an option on his part to pay the interest to that date or not. The bank denied any agreement to extend whatever, and the only person who testified to the existence of any such agreement was the plaintiff himself, who several times reiterated his right under whatever agreement was made to sell his cotton and pay before October 18, 1921, and that the interest would then stop. As therefore correctly held by both the trial court and Court of...