First Nat. Bank v. Shaw

• Decision Date: 21 February 1924
• Docket Number: (No. 28.)
• Citation: 260 S.W. 309
• Parties: FIRST NAT. BANK OF KOSSE v. SHAW.
• Court: Texas Court of Appeals

260 S.W. 309

FIRST NAT. BANK OF KOSSE v. SHAW.

(No. 28.)

Court of Civil Appeals of Texas. Waco.

February 21, 1924.

Rehearing Denied April 3, 1924.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

Action by J. C. Shaw against the First National Bank of Kosse and another. Judgment for plaintiff, and named defendant appeals. Reversed and remanded as to appealing defendant, and affirmed as to the other defendant.

Robert F. Higgins, of Marlin, for appellant.

N. J. Llewellyn, of Marlin, for appellee.

SPIVEY, J.

Appellee brought suit against appellant and one John Smith, who was a tenant of appellee, for rent and advances owing by the tenant, and as cause of action against appellant, alleged that certain of the cotton raised by the tenant had been shipped from Marlin, Tex., to Houston, Tex., by either the tenant or appellant, without the knowledge or consent of appellee, and that as soon as appellee learned of this, he went to the appellant and informed its president, W. L. Forbes, that he (appellee) held a landlord's lien upon said cotton for certain rents and advances named, and that they (appellant and appellee) then and there had an agreement that if appellee would not foreclose his landlord's lien but would allow appellant to sell the cotton, appellant would, out of the proceeds, pay appellee's claim.

Appellant denied generally, and among other things pleaded that there was no consideration for the bank's promise, if any was made.

The case was submitted to the jury upon special issues, among which was issue No. 1 as follows:

"Did the plaintiff, J. C. Shaw, and President Forbes of the First National Bank of Kosse have an understanding or agreement on or about October 20, 1920, that the cotton of John Smith (who was the tenant) which was shipped to Houston, should be sold by said bank, and that out of the money received for the same the claim of the plaintiff, Shaw, for rents and advances against John Smith would be paid by said bank?"

— which issue the jury answered in the affirmative; and upon this and the answers to other issues relating to the amount of rent and advancements owing by the tenant to plaintiff, judgment was rendered against appellant and the tenant.

Appellant requested submission of the following issue:

"If you answer the first issue submitted by the court in the negative, you need not answer this, but if in the affirmative, then answer this question, at the time of such agreement did defendant John Smith owe anything to the First National Bank of Kosse?"

— which issue the court refused to give.

From the judgment the bank alone has appealed, and assigns, among other errors, that the evidence fails to show that there was any consideration for the bank's promise, if any was made, and that the court erred in refusing to submit said requested special issue, and that the judgment is excessive as against appellant.

The only direct evidence of the agreement between appellant and plaintiff, aside from the testimony of appellant's president, who denied having made any agreement at all, is that of the plaintiff, who testified as follows:

"I went to Kosse the very next day (after the cotton was shipped) and saw the bank over there. I understood the bank had a mortgage on his crop (tenant's crop), and I went to the bank the very next day and called Mr. Forbes, the president of the bank, and told him that I had a claim against John Smith (the tenant) about paying for the picking of the cotton and things like that; and he said, `All right, go ahead and make out your account and send it in and I will allow your account.' I came back perfectly satisfied with that arrangement. * * * I told him that I wanted the rents and $75 of the advances I made for picking cotton and he said, `Make out your account and I will allow it.' * * * He (referring to the tenant) owed me $75 and I told Mr. Forbes he (Smith) owed me for advances for picking cotton and owed me rent on the cotton, and he (Forbes) said, `All right, you just send in the account.' I told this bank here that he owed me at that time rent on the cotton and also for advances I made. Mr. Forbes didn't ask me how much it was. He told me to make out my account and send it to him and he would allow it. He didn't say he would pay me and what was left he would take for the bank. * * *"

From other evidence it appears that the rent to which plaintiff was entitled was one-fourth of the cotton or its proceeds; and that when sold in April or May of the year after that in which it was raised, it brought "a little over $600," which is as definite as can be stated from the evidence; and also from the above testimony of plaintiff, the only advancement made by him to the tenant, of which appellant was advised, was $75, and this is the only amount it agreed to pay in addition to rent. So that, under the undisputed evidence, the only judgment which should have been rendered against appellant, in so far as this issue is concerned, was $150 for rent and $75 for advancements. And while the petition does not pray for interest, it contains prayer for general relief, and it may be that thereunder plaintiff would also be entitled to interest from the date payment should have been made.

But if there was no consideration for appellant's promise, then of course plaintiff would not be entitled to recover anything against appellant; and this leads to the discussion of that issue and of the refusal of the court to submit the above quoted special issue, in view of another trial.

It is to be noted that nothing was said in the conversation between plaintiff and appellant's president as to allowing appellant to sell the cotton, nor as to the plaintiff not foreclosing his lien upon it. But appellee relies upon the language used by appellant's president, and upon the facts and circumstances surrounding the parties, and upon their acts, to show that a promise on the part of appellee not to foreclose and to permit the bank to sell the cotton was implied, and that appellee did forbear accordingly.

There may be a contract implied in fact as well as an express contract; and there is no difference in principle between the two, but only a difference in the character of the evidence by which they are established. Fordtran v. Stowers, 52 Tex. Civ. App. 226, 113 S. W. 631. And in arriving at the intention of the parties, and in the interpretation of the agreement, it is proper to take into consideration the subject-matter of the contract, the situation of the parties, and the purpose they had in view in making the agreement; and the language used by them should be reviewed and interpreted in the light of such conditions. Royal Ins. Co. v. Texas, etc., Ry. Co., 53 Tex. Civ. App. 154, 115 S. W. 117, 123; Texas Glass Co. v. Southwestern Iron Co. (Tex. Civ. App.) 147 S. W. 620; Barber v. Herring (Tex. Com. App.) 229 S. W. 472. Likewise the acts and conduct of the parties occurring subsequent to the making of the contract and tending to throw light upon it are admissible (Stobie v. Earp, 110 Mo. App. 73, 83 S. W. 1097), provided they do not impinge upon the rule forbidding self-serving declarations and acts. And if the intention of the parties and the consideration upon which the obligation is assumed are that there shall be a correlative obligation on the other side, the law will imply that obligation. Griffith v. Bradford (Tex. Civ. App.) 138 S. W. 1072; Marvin v. Rogers, 53 Tex. Civ. App. 423, 115 S. W. 863. However, nothing is consideration for a contract which the parties do not regard as such at the time of entering into it. Nunn v. Lackey, 1 White & W. Civ. Cas. Ct. App. § 1331; Philpot v. Gruninger, 14 Wall. 575, 20 L. Ed. 743. And where the promise is to pay the debt of another, there must be a valid consideration moving to the promisor. Detriment to promisee alone is not sufficient; as, in such cases, it makes no difference that one to whom a naked promise is made has suffered detriment through relying upon it. Estes v. Bryant (Tex. Civ. App.) 140 S. W. 1177; Bluff Springs Mercantile Co. v. White (Tex. Civ. App.) 90 S. W. 710; Denver Pressed Brick Co. v. Le Fevre, 25 Colo. App. 304, 138 Pac. 434; Bragg v. Danielson, 141 Mass. 195, 4 N. E. 622; Witt v. Wilson (Tex. Civ. App.) 160 S. W. 309.

Under the foregoing principles and such others as may be applicable when applied to the facts upon another trial, it should be determined whether there was or was not a valid consideration for appellant's promise.

We are not unmindful...