Eule v. Dorn

• Decision Date: 03 February 1906
• Parties: EULE v. DORN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

92 S.W. 828

EULE v. DORN.^*

Court of Civil Appeals of Texas.

February 3, 1906.

Appeal from Harris County Court; Blake Dupree, Judge.

Action by A. E. Dorn against William Eule. From a judgment for plaintiff, defendant appeals. Reversed.

Rehearing denied.

Baker, Botts, Parker & Garwood, and W. H. Kimbrough, for appellant. Lane & Higgins, for appellee.

PLEASANTS, J.

This suit was brought by appellee to recover the amount due upon two promissory notes executed by appellant. The first note declared upon was of date May 28, 1903, for the sum of $500, and payable to appellee on October 15, 1903. There is a credit upon this note of $225.62, entered on June 11, 1904. The second note was executed on April 14, 1904, and payable to appellee, in the sum of $565.65, on September 1, 1904. Each of said notes bears interest at 10 per cent. from date, and contains the usual stipulation for the payment of 10 per cent. attorney's fees in event it is not paid at maturity and is placed in the hands of an attorney for collection. Each also recites that a lien is thereby given to secure its payment upon 500 sacks of rough rice out of the crop raised by the maker during the year in which the note was executed. The prayer of the petition is for recovery of the principal, interest, and attorney's fees due upon each of the notes and for foreclosure of said lien upon the rice above described.

The defendant answered by general and special demurrer, general denial, and several special pleas. The first special plea, which constitutes the fourth paragraph of the answer, is as follows: "Answering specially, if required to answer, defendant says that the notes sued on and mentioned in plaintiff's petition, have been wholly paid and discharged, according to their full terms, tenor and purport, and that they were so paid and discharged by the shipment by defendant from Katy, Tex., to Bayou City Rice Mills, at Houston, Tex., at the instigation and request of plaintiff, and upon his express representation and guaranty that the same should bring the defendant the net price of at least $3.25 per sack, the following quantities of rough rice, to wit: On September 16, 1903, one car load, containing 190 bags of rice, which was received by said Bayou City Rice Mills on September 19, 1903; on September 22, 1903, one car load, containing 190 bags of rice, which was received by the Bayou City Rice Mills on September 25th following, and on September 23, 1903, one car load, containing 162 bags of rice, which was received by the Bayou City Rice Mills on September 27th, following—which said rice, at the minimum price so guarantied by said plaintiff, amounted to more than the amount of defendant's indebtedness to said plaintiff, and said plaintiff agreed that the price of said rice should be applied to the payment of said indebtedness, so far as necessary to extinguish said indebtedness, and promised and agreed to pay to this defendant the remainder of the proceeds of said rice."

The fifth paragraph of the answer is as follows: "Further answering specially, if required to answer, defendant says that the note described in paragraph No. 2 in plaintiff's petition was given in lieu of a certain note dated July 20, 1903, for the principal sum of $500, executed by this defendant, payable to the order of the plaintiff herein, with interest at 10 per cent. per annum, and containing other provisions not necessary herein to mention, and that said note of July 20, 1903, had long prior to the execution of said note of April 14, 1904, been wholly paid off and discharged, according to the full terms, purport, tenor, and effect thereof by the shipment of rice by this defendant to the Bayou City Rice Mills, at the instigation and request of said plaintiff, and under his express guaranty that the same shall bring not less than $3.25 per sack, and be applied to the payment of said note and other notes owing by plaintiff to defendant, so far as same should be necessary to extinguish said indebtedness, and plaintiff alleges that said rice, at said minimum price, was more than sufficient to pay off all of defendant's indebtedness to plaintiff, as is more fully shown in the preceding paragraph of this answer, the allegations of which are here now repeated as a part of this paragraph. And defendant alleges that said note of July 20, 1903, having been, in the manner above alleged, fully paid off and discharged, the execution and delivery of said note of April 14, 1904, in substitution and lieu thereof, was wholly and entirely voluntary on the part of this defendant, and that no consideration whatever was paid therefor by the plaintiff, or any other person, or received by this defendant from said plaintiff, or any other person. Wherefore defendant says that said note of April 14, 1904, described in said second paragraph of plaintiff's petition, is entirely void, and is wholly insufficient to sustain this suit."

The sixth and seventh paragraphs of the answer contain several unnecessary and insufficient averments, but the following facts are therein set out as constituting a defense to plaintiff's suit, and a counterclaim upon which judgment is sought against plaintiff: It is alleged, in substance, that in April, 1903, plaintiff agreed with defendant to let him have whatever money he might need in the cultivation of his rice crop during said year, and for such amounts as defendant might borrow from plaintiff he was to execute his notes to be paid out of the proceeds of said crop; that in pursuance of this agreement defendant borrowed from plaintiff $500 on May 28, 1903, $500 on July 20, 1903, and $500 on September 16, 1903, for each of which amounts he executed his note to plaintiff, payable in the fall of that year; that after his crop of rice, which amounted to about 1,000 sacks, had been gathered, he had an offer to buy and could have sold it at Katy Station, near his home, at from $3.25 to $3.50 per sack, which was its market value, but upon plaintiff's guaranty that if he would ship the rice to the Bayou City Mills at Houston, Tex., and permit it to be milled and sold by said mills,...