Garza & Co. v. Jesse French Piano & Organ Co.
| Decision Date | 12 March 1910 |
| Citation | 126 S.W. 906 |
| Parties | GARZA & CO. v. JESSE FRENCH PIANO & ORGAN CO. |
| Court | Texas Court of Appeals |
Appeal from Dallas County Court; W. M. Holland, Judge.
Action by Jesse French Piano & Organ Company against Garza & Co. Judgment for plaintiff, and defendants appeal. Affirmed.
Davis & Lipscomb, for appellants. U. F. Short, for appellee.
This suit was instituted by appellee, Jesse French Piano & Organ Company, a corporation, against Garza & Co., a partnership, to recover on certain notes executed by appellants, and to foreclose a lien on the property for which the notes were given. Appellee alleged that it had sold to appellants one certain automatic electric piano; that appellants had executed to it, in part payment therefor, notes aggregating the sum of $530, all dated and payable at Dallas, Tex., to the order of appellee, each of said notes providing for 10 per cent. attorney's fees, if placed in the hands of an attorney for collection; that to secure the payment of said notes appellants executed and delivered to the appellee a certain chattel mortgage upon said electric piano; that all of said notes are due and unpaid; and that appellee has been "compelled to place the same in the hands of an attorney for collection and to institute this suit to collect the same." Plaintiff also alleged that said notes bore interest from date at the rate of 8 per cent. per annum. Appellee prayed for judgment for the amount due on the notes, including principal, interest, and attorney's fees, and for a foreclosure of the lien evidenced by the chattel mortgage referred to. Garza & Co. filed a plea in abatement, in substance, that on the 22d day of June, 1907, they brought a suit in the county court of Bexar county, Tex., to rescind the contract for the purchase of the piano for which the notes sued upon in this case were given in part payment, and to cancel said notes for the reasons stated in appellants' petition, in that action. They sued out a writ of injunction to restrain appellee from any transfer of the notes pending said action, which was served upon the appellee on the 24th day of June, 1907. Afterwards, on the 20th day of August, 1907, appellee brought this action upon the notes, and to foreclose the mortgage against the piano for which they were given in part payment, and which were secured by a mortgage, as stated in appellee's petition. The record does not show what answer was filed by appellee to the action brought by the appellants against the appellee in the county court of Bexar county. That cause was tried, and a judgment rendered for the plaintiff, which was reversed on appeal. See Jesse French Piano & Organ Co. v. Garza & Co., 116 S. W. 150. A reference to the opinion in that case shows that the answer filed by the defendant therein was a general demurrer and general denial. The record in this case only shows the bringing of the suit to rescind the contract and cancel the notes executed by appellants to appellee. The plea in abatement sets up the pendency of the suit in the county court of Bexar county, and insists that this suit should be abated and dismissed. The trial court overruled the plea in abatement, and his...
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