Gray v. Altman

• Decision Date: 20 April 1912
• Citation: 149 S.W. 760
• Parties: GRAY v. ALTMAN et al.
• Court: Texas Court of Appeals

149 S.W. 760

GRAY v. ALTMAN et al.

Court of Civil Appeals of Texas. Amarillo.

April 20, 1912.

Rehearing Denied June 1, 1912.

Appeal from District Court, Dallam County; D. B. Hill, Judge.

Action by H. Altman and another against E. E. Gunn, T. R. Gray, and others. From a judgment for plaintiffs, defendant Gray appeals. Affirmed.

J. E. Synnott, of Dalhart, and Cooper, Merrill & Lumpkin, of Amarillo, for appellant. Tatum & Tatum, of Dalhart, for appellees.

HALL, J.

Appellees H. Altman and D. McUlvan instituted this suit against E. E. Gunn as maker of two certain promissory notes, secured by vendors' lien, aggregating $20,160, against E. S. Collins, T. R. Gray, and his wife, as indorsers of said notes, and to foreclose vendors' lien upon certain lands described in the notes. The appellant Gunn answered by general denial, and specially answered, alleging that he was an indorser; that he had contracted with appellee Collins for the sale of the notes, and had made and entered into a contract and agreement with Collins to indemnify him and hold him harmless on said notes, praying, in the event any judgment was rendered against him which he should be compelled to pay, that he have judgment against Collins for such amount. He also prayed for damages for the issuance and levying of an attachment upon his property. The appellee Collins filed an answer, adopting the allegations in plaintiffs' petition, alleged that he was only an accommodation indorser on said notes, and sought to have any judgment obtained against him made out of appellants E. E. Gunn and T. R. Gray and wife. The notes provide for 10 per cent. attorney's fees, and, a jury having been waived, the case was tried before the court, who rendered judgment against E. E. Gunn for the full amount of the notes, principal, interest, and attorney's fees, foreclosing the vendors' lien and ordering the land sold; also rendering a judgment against T. R. Gray and E. S. Collins for the full amount, providing that no execution should issue against Gray until the land had been exhausted and the property of E. E. Gunn exhausted, and that no execution issue against Collins until after the return of an execution against Gray; and providing further that, in the event Collins should be compelled to pay any sum toward the satisfaction of the judgment, he should have his execution against Gray, and also awarding execution in favor of Gray against Gunn. The judgment discharged Mrs. Gray by reason of coverture, and against Gray on his action for damages by reason of the attachment. The court further found that $1,920, which was in escrow in the bank, was the property of T. R. Gray, and decreed that if the amount of the judgment could not be collected from Gray, then that said $1,920, or so much thereof as was necessary, should be applied upon any unpaid part of the judgment, before an execution should be levied upon the property of the said Collins.

Appellant insists, under the first assignment of error, that the court erred in refusing to permit him to file a first supplemental answer, the substance of which was to deny the ownership of the notes by plaintiffs and allege title thereof to be in the First National Bank of Cheyenne, at the date of the maturity of said notes. This supplemental answer was not tendered until after it had developed, during the introduction of the testimony, that said bank possibly had some right, title, or interest in the notes. It is insisted that the offer to file this supplemental answer should have been granted, and that a failure to do so is prejudicial, because it would have shown that the bank had at least once owned the notes, and that Altman and McUlvan had paid them off, by reason of which conditions they had no right to sue upon the notes, but that the cause of action was upon the implied promise of previous indorsers and the makers to reimburse them for the amount so paid; and, further, that they would not have been entitled to recover the attorney's fees provided for in said note. In support of this contention, we are cited to the case of Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528, and subsequent cases, announcing the same rule. The authorities cited by appellant hold that, where joint obligors have executed a written contract, and one or more of them has satisfied the debt, an action can be maintained against their co-obligors for contribution upon the implied promise only, and not upon the written contract. We do not believe the authorities cited to be applicable to this case, and have found no decision where the rule has been applied to an indorser whose liability is only secondary. On the contrary, it is held, in the case of Williams, Adm'r, v. Durst,...