First Nat. Bank of Amarillo v. Rush

• Decision Date: 05 January 1921
• Docket Number: (No. 1727.)
• Citation: 227 S.W. 378
• Parties: FIRST NAT. BANK OF AMARILLO et al. v. RUSH et al.
• Court: Texas Court of Appeals

227 S.W. 378

FIRST NAT. BANK OF AMARILLO et al. v. RUSH et al.

(No. 1727.)

Court of Civil Appeals of Texas. Amarillo.

January 5, 1921.

Rehearing Denied January 26, 1921.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Suit by the First National Bank of Amarillo against J. W. Rush, Mamie Rush, as administratrix, being substituted as defendant, wherein W. H. Fuqua intervened. From judgment for defendant administratrix against plaintiff Bank, and in her favor against the intervener, etc., plaintiff Bank and the intervener appeal. Affirmed in part; reversed and remanded in part.

See, also, 213 S. W. 931.

Kimbrough, Underwood, Jackson & Simpson, Madden, Trulove, Ryburn & Pipkin, Miller & Guleke, and C. B. Reeder, all of Amarillo, and W. D. Wilson, of Spur, for appellants.

H. H. Cooper, of Houston, J. A. Stanford, of Waco, and Veale & Lumpkin, of Amarillo, for appellees.

HUFF, C. J.

This is the second appeal of this case, and for a statement of the case on the original appeal reference is made to the report thereof in 210 S. W. 521, 160 S. W. 319. As originally instituted, it will be observed that the bank brought suit against J. W. Rush and wife on a note for $12,000 due the bank, with 10 per cent. interest and attorney's fees; that Rush pleaded, among other things, the payment of the note. W. H. Fuqua intervened in that suit and set up the fact that he and Rush were partners in the cattle business, and also were partners in the purchase of a section of land, in which last partnership Fuqua was to have two-thirds of the profits derived from the sale of that land and Rush one-third. Since the former appeal of the case J. W. Rush died, making a will, appointing his wife executrix, and she has also died, and their daughter, Mamie Rush, has been appointed administratrix of the estate of her father and mother, with will annexed, and makes herself a party defendant to the suit, adopting the answer filed originally by J. W. Rush. After the reversal of the case in the district court the bank amended its petition on March 23, 1920, setting up the execution of the note as theretofore pleaded, and alleging that J. W. and Mattie E. Rush had executed and delivered to it a certain deed of trust on 200 acres of land in the section mentioned in the pleadings; that thereafter, on the 10th of February, 1909, the original defendants desired to sell the 200 acres, and that the bank, to accommodate the defendants, executed and delivered a release of the deed of trust. In consideration thereof J. W. Rush indorsed and delivered certain notes described, which were six real estate mortgage bond notes, executed by one Gid Jowell, aggregating $20,000. It is alleged that all of said notes had been since sued upon in Swisher county, foreclosing a lien on the real estate given to secure the same and that the parties, by agreement, had since placed in the hands of T. W. Tomlinson as trustee, the land which was bought in at the foreclosure sale, under the terms of the agreement between the parties. The Gid Jowell notes were shown to have been given for part of the land alleged to have been held under a partnership agreement, as theretofore set out, and that the notes were held in place of the deed of trust and mortgage on the land. The bank, by its amended petition, shows that J. W. Rush had an overdraft in the bank, and it seeks for a judgment on the overdraft. The administratrix, Mamie Rush, pleaded the statute of limitation as against this last cause of action on the overdraft. In this case at this time also the pleadings by the bank and by the intervener, Fuqua, set up the fact that Fuqua was a partner in the land transaction, and that he was liable for the partnership land account. The pleadings go into detail with reference to the manner in which the accounts were kept, which possibly will not be necessary on this appeal to set out more in detail. The case was tried to a jury on special issues as follows:

"Special issue No. 1: Did intervener, W. H. Fuqua, pay or on his individual responsibility procure the First National Bank of Amarillo to pay the entire $9,600 purchase price for said section No. 27, block W 1, Swisher county, Tex.?" The jury answered "No."

"Special issue No. 2: Did defendant, J. W. Rush, after he had executed and delivered the $12,000 note sued upon, recognize as valid and binding the contract made and entered into by and between him and intervener, W. H. Fuqua, on the 24th day of March, 1906?" The jury answered "Yes."

"Special issue No. 3: Did the said defendant, J. W. Rush, at the time he turned over to intervener, W. H. Fuqua, or to other officers of the plaintiff's bank, proceeds arising from the sale of part of said section of land, consent for said proceeds to be applied otherwise than on said $12,000 note?" The jury answered "No."

"Special issue No. 3, requested by defendant: At the time J. W. Rush delivered to W. H. Fuqua the proceeds of the sale of portions of the Adair section of land amounting in the aggregate to $12,750, did he, when he turned over said amount, instruct W. H. Fuqua to apply same on the $12,000 note?" Answer: "Yes."

"Special issue No. 6: Was the $12,000 note bearing date of March 24, 1906, executed for the purpose of covering the then existing overdraft in the name of J. W. Rush, on the books of the First National Bank?" The jury answered "No."

"Special issue No. 8: Was the $12,000 note, dated March 24, 1906, executed by J. W. Rush to apply as a credit on the J. W. Rush account?" The jury answered "Yes."

There were no issues submitted as to the cattle partnership between Rush and Fuqua. Upon the motion of defendant the trial court entered judgment in favor of the appellee against the bank and in favor of appellee against Fuqua on the cattle account for the sum of $333.82, and a judgment to the effect that there was no partnership existing between Fuqua and Rush on the land account. In this case it was admitted that there was a partnership existing between Fuqua and Rush in the purchase and sale of cattle. The terms of that contract will be noticed later on in the opinion. The facts also show that on the 24th day of March, 1906, Fuqua and Rush entered into a written agreement reciting that Rush had purchased a certain section of land situated in Swisher county, being section No. 27, block W 1, and sometimes known in the record as the Adair land, for the consideration of $9,600, being the purchase price of the land; that Fuqua was to furnish $9,600, or have it furnished; that Fuqua was to be paid back $9,600, so paid by him, without interest; and that he was to have two-thirds of the profits made on said section over and above the sum paid for it. The facts show substantially that Rush took the deed to the land in his name, and that he paid for the same by checking on the bank for the amount of the purchase price, and that the $12,000 note was given to cover the purchase money and either an overdraft or to give him credit in the bank over the purchase price of the land. To secure this note so executed Rush made a deed of trust on the land and also a deed of trust on a section of land in the name of his wife. He and his wife signed the deed of trust and also the note. A foreclosure was not sought on the land, but the Gid Jowell note, for which part of the land purchased was sold to Jowell, for $20,000, represented by his six notes mentioned in the pleading, was put up instead thereof as security to the $12,000 note. The other facts necessary to an understanding of the opinion will be noted as we consider the questions involved.

By the first assignment, as well as by several others, appellant bank, joined therein by Fuqua as intervener, insists that, under the findings of the jury in answer to issues Nos. 1 and 2, they, in effect, found a partnership existed in the land between Fuqua and Rush, and that the court erred in not so decreeing.

It is objected upon the part of appellee that the brief of the appellant bank cannot be considered on the issues between the intervener and appellee, as the bank only asserts error in the judgment in decreeing there was no partnership in the land, and since Fuqua, the intervener, only adopts the brief of the bank, without presenting an assignment of his own thereon, that we should disregard the assignments of the bank presenting the issue, as it could have no interest in the question. It probably is true that the intervener's brief is not strictly in accordance with the rules of briefing, but, as the bank and Fuqua have made a common cause on the issue, we believe it was unnecessary to repeat the assignments in the brief of both the bank and Fuqua, as the issue can be considered under the assignments as presented.

The contract upon which intervener and the bank rely as establishing a partnership was one of which performance was to commence in the future. While by the terms of the writing itself the past tense is used, as that Rush had purchased the land and Fuqua had paid $9,600, the facts are the land purchase was not consummated, and Fuqua did not furnish the money. Under the contract, Fuqua was to receive back the money paid without interest out of the sale of the land before the profits were divided. The writing, when drawn, therefore, was applicable to a condition then in contemplation. If the condition did not then exist, or if the conditions never occurred, which were intended to be covered, the relation of partnership was not established, under the terms of the contract, after his failure to furnish the money. It was said by the Commission of Appeals upon the hearing of this case before that court:

"Notwithstanding the contract, read literally, shows an executed agreement, yet we think that, properly construed in the light of the evidence, it was purely executory; in other words, it was an agreement to be executed by the parties in the future."

It is further said in the opinion:

"If Fuqua, after agreeing to...