Ferguson-McKinney Dry Goods Co. v. Garrett

• Court: Court of Appeals of Texas
• Citation: 235 S.W. 245
• Docket Number: (No. 6629.)
• Parties: FERGUSON-McKINNEY DRY GOODS CO. v. GARRETT.
• Decision Date: 23 November 1921

Page 245

235 S.W. 245

FERGUSON-McKINNEY DRY GOODS CO. v. GARRETT.

(No. 6629.)

Court of Civil Appeals of Texas. San Antonio.

November 23, 1921.

Rehearing Denied December 14, 1921.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by the Ferguson-McKinney Dry Goods Company against Joseph E. Garrett. From a judgment for defendant, plaintiff appeals. Affirmed.

H. R. Sutherland and Kleberg, Stayton & North, all of Corpus Christi, and O. W. Patchell, of Pauls Valley, Okl., for appellant.

G. R. Scott, Boone & Pope, of Corpus Christi, for appellee.

COBBS, J.

On November 20, 1913, appellant, a corporation, brought suit against appellee in the district court of Nueces county, Tex., to recover on a judgment obtained by default, on December 3, 1903, for the sum of $1,660.33, costs, and interest, in the United States District Court at Pauls Valley, Indian Territory, which judgment was alleged to have been revived by a judgment rendered and entered in the district court of Garvin county, Okl., on September 12, 1913.

It was assigned on the 29th day of January, 1916, by the Ferguson-McKinney Dry Goods Company to Ferguson-McKinney Manufacturing Company, another corporation. It filed its petition on February 5, 1921, in this cause averring its ownership of the cause of action sued upon, and by the court allowed to be substituted as a party plaintiff. Appellee, by his amended answer, alleged, among other defenses, that at the time the alleged judgment was obtained against him on December 3, 1903, he was not a resident of Wynnewood, Indian Territory, or within the jurisdiction of that court, but a resident of the state of Texas, and he was never personally or properly served with citation, summons, or scire facias in such way as to give jurisdiction over his person in that court, and made no appearance therein in person or through any attorney. He pleaded the various statutes of limitation applicable, and alleged that he moved from Indian Territory in October, 1902, and became a resident of the state of Texas, where he has continuously resided ever since. That the judgment against him became dormant under the laws of the state of Oklahoma on November 16, 1912, and at the time motion was filed to revive judgment it was barred by the statute of limitations of 4 and 10 years. It was further pleaded that the judgment had been satisfied, and full accord and satisfaction made. Likewise pleaded that appellant was not entitled to recover in the manner and form in which the suit was brought, for it was not a legal entity and was not an existing corporation, and was not the owner of the claim sued upon, being so challenged by a sworn answer. The court instructed the jury to return a verdict for appellee.

The first assignment raises the question that the court erred in instructing a verdict for the defendant. The assignments are very vague in presenting the issues for our determination, but, as the questions presented are such as are of themselves easily stated, we will not trouble ourselves further about the form of the assignment. Was there an accord and satisfaction? is the first question presented. There was testimony showing that appellee thought the amount due from him on the claim was about $1,500, and promised to pay that amount if time was given, for he could not pay all at that time but would give his note for $1,000, due in the fall, and would pay balance in cash when the true amount of balance, supposed to be in the neighborhood of $400, was ascertained. This conversation was in appellant's office, in St. Louis, Mo., and the balance was to be ascertained before appellee left. Failing to find the amount due before his departure, he executed and delivered to appellant his said note for that amount, with the understanding he would pay all when ascertained. He paid said note in full when it matured. This agreement was denied by appellee, whose evidence is in conflict with appellant's to the effect that it was especially agreed that said note for $1,000 was given in full accord and in full satisfaction of all his said indebtedness.

The appellant claimed the settlement was made on the basis of his promising and agreeing to pay the amount of his original account to Ferguson-McKinney Dry Goods Company without interest, and that in furtherance thereof appellee gave appellant his note for a part and promised and agreed to pay the balance of about $400, the correct balance to be thereafter ascertained. He paid the note for $1,000 when it matured, but refused, it is alleged, to pay the balance, and therefore the settlement or agreement was never fully executed, meaning thereby no accord and satisfaction was ever had, notwithstanding the acceptance of the note, its payment, and receipt acknowledging its payment and satisfaction in full. When appellee paid the note, July 16, 1919, a receipt was given to him, reciting that J. E. Garrett, of Corpus Christi, Tex., had paid his account in full to date with Ferguson-McKinney Dry Goods Company.

Notwithstanding that appellant accepted the amount of $1,000, it here now asks that a credit only be allowed therefor, and undertakes by pleading to set aside the receipt, on the ground that the person executing same had no authority to issue such a receipt, and then in effect waives that charge and says the receipt was executed on the fraudulent promise to pay Ferguson-McKinney Manufacturing Company the balance of $479.14 upon his return to his home in Texas.

Appellant would have been in a much better position to deny accord and satisfaction, and that the new note and new promise were made without consideration, on the ground that an agreement to pay an existing debt is ordinarily without consideration, and had no effect as a complete satisfaction of the original obligation, but a mere naked promise to do what the law requires the debtor to do—that is, to pay his debts. If it be true as a fact, as the receipt expresses itself, and the defendant's testimony shows, then the acceptance of the money was in the nature of a compromise, or settlement, and received as a payment in full satisfaction of the obligation.

In this case the appellant is ratifying the agreement to the extent of receiving the full payment of the note as claimed as a valid agreement as to their differences, and at same time repudiates it because appellee does not pay the alleged agreed balance. He does not sue to recover the balance, but the full judgment, less the payment of the note. There is evidence that appellant so understood the agreement and sought to dismiss the suit, and at the request of appellee, in pursuance of the agreement, did wire the district judge requesting its dismissal; but the counsel (O. W. Patchell) of appellant would not permit its dismissal until his fee was paid, claiming one-half of the recovery, stating that he felt sure to win and collect full amount; hence the suit was not dismissed.

When parties agree that the promise shall be in...