Gregory v. South Texas Lumber Co.

• Decision Date: 05 November 1919
• Docket Number: (No. 6266.)
• Parties: GREGORY v. SOUTH TEXAS LUMBER CO. et al.
• Court: Texas Court of Appeals

216 S.W. 420

GREGORY v. SOUTH TEXAS LUMBER CO. et al.

(No. 6266.)

Court of Civil Appeals of Texas. San Antonio.

November 5, 1919.

Rehearing Denied December 3, 1919.

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

Action by the South Texas Lumber Company, a corporation, and another, against G. W. Gregory. From a judgment for plaintiffs and a denial of a new trial, defendant appeals. Affirmed.

J. C. Scott, of Corpus Christi, for appellant.

MOURSUND, J.

South Texas Lumber Company, as beneficiary, and F. B. Bynum, as trustee, sued G. W. Gregory on a promissory note executed by him to said lumber company, and to foreclose the lien on certain real estate evidenced by a deed of trust given by Gregory to secure the payment of said note. It was alleged that Bynum was appointed substitute trustee in accordance with the terms of the deed of trust.

On January 8, 1918, Gregory by his then attorney, E. P. Scott, filed his original answer consisting of a general demurrer and general denial.

On January 9, 1919, the first day of the term, the case was set for trial on January 14th. It was called for trial on January 14th, and a judgment rendered in favor of the lumber company for $1,537.04, principal, interest, and attorney's fee, and for foreclosure of the deed of trust lien.

On March 15, 1919, the court overruled Gregory's amended motion for a new trial.

The assignments of error presented relate chiefly to the ruling of the court in refusing to grant a new trial.

In the motion appellant urged various excuses for his failure to be present at the time of the trial, and alleged that he had good and valid defenses to the plaintiffs' suit. The only allegations in which he undertook to state any defense are as follows:

"And one of such defenses is, in effect, that at and before the time of making the note herein sued upon and the execution by this defendant of the trust deed on lots one (1) and two (2), in section two (2) of the Flour Bluff and Encinal Farm and Garden Tracts, in Nueces county, Texas, to secure the payment of said note, it was clearly, distinctly and specifically understood and agreed by and between the defendant and plaintiff acting by and through its agent and attorney, that the payment of the note sued on would not be enforced by plaintiff against defendant, until defendant had raised a cotton crop on his land in Nueces county, or from other sources had become able to pay off and discharge said note so sued upon; and such agreement and understanding was the inducement or consideration which caused this defendant to sign said note and execute the aforesaid deed of trust, and if it had not been for such understanding and agreement upon the part of plaintiff and this defendant, he, defendant, would not have made and executed said promissory note and...