Guthrie v. O. T. Lyon & Sons

• Decision Date: 27 October 1906
• Citation: 98 S.W. 432
• Parties: GUTHRIE et al. v. O. T. LYON & SONS et al.
• Court: Texas Court of Appeals

98 S.W. 432

GUTHRIE et al. v. O. T. LYON & SONS et al.

Court of Civil Appeals of Texas.

October 27, 1906.

On Rehearing, December 22, 1906.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Action by O. T. Lyon & Sons against E. B. Guthrie and others. From a judgment in favor of plaintiffs and in favor of the other defendants against defendant Guthrie, he appeals. Reversed and remanded.

The appellees, O. T. Lyon & Sons, instituted this suit on February 18, 1903, wherein appellant, E. B. Guthrie, appellees Jockusch, Davidson & Co. and M. S. Ujffy were made defendants, recovery being sought upon a vendors' lien note executed by Guthrie to I. N. Guthrie for the sum of $275, dated April 1, 1895, due April 1, 1897, bearing interest at the rate of 10 per cent. per annum, containing the usual attorneys' fees clause, secured by a vendor's lien upon lots 89 to 104, inclusive, of the Battaile addition to the city of Hillsboro, which lots were deeded by I. N. Guthrie to E. B. Guthrie on March 25, 1895; it being alleged that plaintiffs in said suit were the owners and holders of said note and lien, its maturity having been extended to December 1, 1901. It was further alleged: that on the 16th day of April, 1901, appellant, E. B. Guthrie, joined by his wife, executed and delivered to M. S. Ujffy, as trustee, for the benefit of Jockusch, Davidson & Co., a a certain deed of trust in writing conveying said lots, except 102 and 103, to secure the payment of his note to said beneficiaries for $1,037.63, dated December 1, 1900, due December 1, 1901, bearing 6 per cent. interest per annum from date. That in said deed of trust was the further provision, to wit: "And it is distinctly understood and agreed (and this instrument is given and accepted upon the express condition) that, if the said note is not paid at the maturity thereof, then, and in that event, the said E. B. Guthrie may, if he so desire, convey the property hereinabove described to the said Jockusch, Davidson & Co. by his deed of conveyance and the said Jockusch, Davidson & Co. shall and will accept the said deed of conveyance in full satisfaction, payment, and discharge of any and all sums of money due upon, or by reason of, the said note hereinafter described, and a bona fide tender of such conveyance by the said E. B. Guthrie at the maturity of said note or at any time thereafter shall operate as a discharge of all indebtedness by reason of said note, and it is further understood and agreed that the said Jockusch, Davidson & Co., to whom said above-described note is payable, in the event said land is conveyed to them, shall assume and pay a note for $275 and interest, due December 1, 1901, which constitutes a lien against said property." Plaintiffs further alleged that appellant, Guthrie, had tendered and had conveyed said property described in said deed of trust to said Jockusch, Davidson & Co. in full satisfaction of his said indebtedness to them in accordance with the foregoing provisions of said deed of trust and thereby the said Jockusch, Davidson & Co. had become liable to pay the said vendor's lien note in said petition declared upon, together with all interest and attorneys' fees therein provided. They prayed for judgment for the amount of said vendor's lien note with interest and attorneys' fees against appellant, Guthrie, and appellees Jockusch, Davidson & Co., with foreclosure of their vendor's lien, etc. The defendants Jockusch, Davidson & Co. answered, admitting the execution of the deed of trust referred to in the foregoing petition, and their acceptance thereof, but alleged that they were induced to accept same with the provision therein contained by the false and fraudulent representations of the said Guthrie made at and before the time of its execution as to the value and location of the lots therein described. The answer charged that the fraud consisted of certain statements, in letters written to Jockusch, Davidson & Co. by Guthrie, set out therein, which statements they charged were untrue and were made prior to their acceptance of the deed of trust, and that they accepted said deed of trust relying upon said statements. Guthrie filed a reply thereto in which he specifically denied that there was any fraud or misrepresentation in the transaction, but alleged all the statements in his letter were made in good faith and were true. He pleaded that, in accordance with the provisions of said deed of trust referred to, he executed, tendered, and delivered to said defendants his general warranty deed, duly acknowledged, conveying to them the lots in question in fee-simple title, which deed they then and there accepted; that such tender and delivery was, in all respects, bona fide and said defendants were bound to, and did, accept same, whereby his debt to them became discharged and they became liable to pay in full the indebtedness to plaintiffs, Lyon & Sons, upon the vendor's lien note referred to. He also pleaded estoppel on the part of Jockusch, Davidson & Co. by their retention of the deed; that, by their conduct, he was led to believe that they did in all things comply with their agreement, and governed himself accordingly; that, but for such conduct of said defendants, and his reliance upon their complying with the contract, he would have been able to have made sales of some or all of said lots, and would have done so, and would thereby have been enabled to liquidate said indebtedness, all of which he was prevented from doing by the acts and conduct of said defendants. He prayed for judgment canceling his said indebtedness to defendants Jockusch, Davidson & Co., and that they take nothing on their plea against him; that they be adjudged liable for the full amount of the debt in favor of Lyon & Sons, expressed by the vendor's lien note, and that plaintiffs take nothing against him thereon. He further prayed for general relief. A trial resulted in a verdict in favor of O. T. Lyon & Sons against appellant, Guthrie, for the amount of the vendor's lien note with interest, etc., $596.09, foreclosing their vendor's lien upon said lots as against all the defendants and in favor of the defendants Jockusch, Davidson & Co., against appellant...