Appeal from District Court, Gregg County; P. O. Beard, Judge.
Action by Clark Dickson against the Kilgore State Bank. From a judgment for the defendant, plaintiff appeals. Affirmed.
In his petition appellant alleged that on October 18, 1920, he was indebted to appellee in the sum of $4,405.35, evidenced by promissory notes; that his indebtedness was secured by a mortgage executed by him December 18, 1919, on (among other things) all crops grown by him during the year 1920; that he and his tenants grew more than 30 bales of cotton that year, one half of which belonged to him and the other half to his tenants; that he had a landlord's lien on the tenants' half, and on said October 18, 1920, was in possession thereof, holding same for sale for them when the market price was better than it then was; that warehouse receipts for the cotton, issued to him, were by him delivered to appellee; that on the day last named appellee, by its officer and agent, F. D. Oberthier, demanded that he pay said indebtedness, and threatened to foreclose said mortgage unless he did so; that if the mortgage had then been foreclosed the property it covered would not have sold for enough to pay his indebtedness; that such a sale would have destroyed his ability to pay all said indebtedness; that on said October 18, 1920, appellee, "in consideration," quoting —
"of the plaintiff mortgaging to it, or to a person designated by it, 119 acres of land belonging to him, and realizing therefrom the sum of $2,500, and of applying the greater part of the proceeds of said mortgage to the indebtedness of plaintiff to defendant, and in applying the sum of $1,432.35 on his said indebtedness to defendant from the proceeds of said land so mortgaged to it, or to a person designated by it, and in consideration of the notes of the plaintiff owed by him, and upon which he was principal or security, bearing interest at the rate designated therein until said notes should be paid, the defendant agreed with the plaintiff to extend the time of payment of said indebtedness 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 agreed that it would expressly hold said cotton and not sell the same, or any part thereof, under said mortgage on said cotton unless the plaintiff elected to sell the same at a date before October 18, 1921, and promised and agreed to expressly extend the debt or debts as evidenced by the notes of plaintiff or other notes upon which he was surety until said October 18, 1921, unless the plaintiff elected to sell the cotton prior to said date, and not to sell said cotton prior thereto. That relying upon said agreement the plaintiff and his wife made, executed, and delivered to one E. C. Oberthier, the father of said F. D. Oberthier, at the instance and request of said Kilgore State Bank and to a person designated by the said Kilgore State Bank, a deed of trust upon said 119 acres of land, and procured therefrom the sum of $2,500, and paid to the defendant the sum of $1,432.35, as hereinbefore stated, which greatly reduced the indebtedness of plaintiff to defendant, and rendered it more secure in the payment of its debt or debts. That notwithstanding said agreement, as aforesaid, when the plaintiff made demand on or about the 7th day of September, 1921, for the delivery of said cotton in order that he might sell the same, the market price having advanced, the defendant wholly failed and refused to deliver him said cotton, or any part thereof."
Appellant then alleged that the value of the cotton at the time appellee refused to deliver same to him was $3,000, for which amount he prayed judgment.
In its answer appellee alleged that by the terms of the mortgage it had on the cotton it had a right to sell same, and did sell it "in pursuance of the said authority given in said mortgage," and placed the proceeds of the sale to appellant's credit. Appellee further alleged that —
"On or about March 10, 1921, the plaintiff made a proposition to the defendant to keep the cotton margined until June, 1921, and the agreement was that the defendant could sell the cotton in June, if the defendant should place this margin as requested, and defendant says that it placed the margin on the cotton as agreed, with the understanding that the cotton was to be sold in June, 1921, and that the cotton was sold in June, 1921, in pursuance of the agreement entered into with plaintiff."
In a supplemental petition appellant alleged that the agreement mentioned in his original petition "was to supersede any and all provisions in said mortgage that authorized the sale of said cotton," and that the sale thereof, made by appellee as alleged in its answer, was "wholly unauthorized and unwarranted."
On special issues submitted to them the jury found as follows: (1) That appellant and appellee, on or about October 18, 1920, entered into "an agreement," quoting, "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...
