Hander v. Baade

• Decision Date: 28 April 1897
• Citation: 40 S.W. 422
• Parties: HANDER v. BAADE.
• Court: Texas Court of Appeals

40 S.W. 422

HANDER v. BAADE.

Court of Civil Appeals of Texas.

April 28, 1897.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action by Charles Hander against John Baade. Judgment for defendant, and plaintiff appeals. Reversed.

Lessing & Hander, for appellant. J. R. Downs, for appellee.

KEY, J.

Appellant brought this suit against appellee upon a promissory note for $800, and to foreclose a lien upon 10 shares of bank stock attached to the note as collateral security. Appellee pleaded a general demurrer, general denial, and that an agreement had been entered into between him and the plaintiff extending the time of payment for one year, and therefore the note was not due. Appellant, by supplemental petition, demurred generally and specially to defendant's answer denied the facts therein alleged, and pleaded failure of consideration as to the alleged agreement extending the time. W. H. Lessing and Edwin W. Hander, composing the law firm of Lessing & Hander, filed a petition of intervention, claiming that the 10 per cent. attorney's fee stipulated for in the note sued upon had been assigned to and was owned by them, and they asked for judgment against the defendant for said amount. Upon the trial the defendant offered in evidence the following written instrument: "This is to certify that I have this day received from John Baade the sum of eight hundred and thirty-two dollars and 14/100 dollars in full payment of this note in my favor for the sum of eight hundred dollars and interest at the rate of 10 per cent., payable annually, dated Jan. 1, 1895. This amount is also received in full settlement of the suit now pending in the district court of McLennan county, 19th judicial district of the state of Texas, entitled `Charles Hander vs. John Baade,' and it is hereby agreed that said suit may be dismissed at plaintiff's costs. Given under my hand, this, the 26th day of May, 1896. Charles Hander." The plaintiff objected to the introduction of this instrument, because (1) the defendant had not pleaded any payment; (2) the execution of the instrument was not proved; (3) it was not declared on in any pleading filed by the defendant, so as to dispense with proof of its execution; (4) it had not been filed prior to its introduction in evidence; and (5) the plaintiff was not granted time to prepare and file pleas of non est factum and fraud perpetrated by the defendant in procuring said instrument. All of these objections were overruled, and the instrument admitted in...