Hansen v. Yturria

• Decision Date: 14 December 1898
• Parties: HANSEN et al. v. YTURRIA.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

48 S.W. 795

HANSEN et al. v. YTURRIA.¹

Court of Civil Appeals of Texas.

December 14, 1898.

Appeal from district court, Bexar county; R. B. Green, Judge.

Action by F. Yturria against John F. Hansen and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

Upson, Bergstrom & Newton, for appellants. Ogden & Terrell, for appellee.

NEILL, J.

The only assignment of error in this case is as follows: "The court erred in sustaining the general and special exceptions of plaintiff to defendants' answer and in rendering judgment for plaintiff." We held in Marshall v. Atascosa Co. (Tex. Civ. App.) 47 S. W. 680, that such an assignment, under rule 26 (20 S. W. viii.), prescribed for the government of this court, could not be considered in reference to special exceptions, and that the assignment would probably be sufficient in regard to the general exceptions; but that it would be useless for us to pass upon the question, for, if the petition should be held good against a general demurrer, still the court may not have erred in sustaining special exceptions, and there was, under said rule, no valid assignment in respect to it. As there is no error assigned which we consider, we would have affirmed the judgment appealed from, had not appellee suggested delay, and asked for an affirmance, with 10 per cent. damages. This suggestion requires a revision and reversal of the judgment for any error apparent upon the record, though not assigned as error. Riggs v. Horde, 25 Tex. Supp. 456. The question, then, for us to consider, is, is there any error apparent upon the record? This requires a statement of the pleadings of the respective parties.

The appellee (plaintiff below) brought this suit against John F. Hansen and Louis Bergstrom, appellants, upon four several promissory notes, and alleged their being executed to appellee by appellants on the 19th day of May, 1892. The first is for $500, payable 6 months after date; the second is for $500, payable 12 months after date; the third is for $500, payable 18 months after date; and the fourth is for $298.31, payable 2 years after date. All of said notes bear 10 per cent. interest per annum, and provide for 10 per cent. attorney's fees as costs for collection. The petition contains the usual and necessary allegations made in suits of this character. The defendants, after pleading the general denial, answered specially as follows: "Further, specially answering, defendants say that on and prior to the 19th day of May, 1892, the plaintiff, F. Yturria, claimed against the defendant Louis Bergstrom an indebtedness of about $2,900; that the said defendant denied the same, and claimed that the debt was due him by the defendant John F. Hansen, if any person; that at about said date plaintiff and defendants, John F. Hansen and Louis Bergstrom, compromised said contention, defendants, Louis Bergstrom and John F. Hansen, agreeing to execute and deliver to plaintiff the notes, being three notes for $500 each, and one note for about $400, said notes of $500 each and said note of about $400 failing due at intervals after the note sued upon, and one note not here sued upon, executed with one surety, on condition that the said John F. Hansen should go to Brownsville, and purchase and ship bones and general produce, plaintiff to furnish for said purpose the sum of $20,000, all moneys to be paid for produce to be paid by and through plaintiff, and the said Louis Bergstrom to furnish a market and purchaser for all bones and produce so shipped, the said plaintiff guarantying and binding himself to furnish and deliver at Brownsville 1,000 tons of bones in addition to such bones as might be purchased by the defendant Hansen, the said defendant Hansen to pay plaintiff for said 1,000 tons of bones at Brownsville, Texas, at the rate of five Mexican dollars per ton, said Mexican dollars being then of the value of sixty-four cents for each Mexican dollar; that the proceeds of said bones and produce should be used, first, to pay off and discharge all sums of money advanced by plaintiff in the purchase of such bones and produce, and the remainder thereof, if any, to be applied to the payment of the notes sued upon, and the other notes executed as aforesaid, and the remainder, if any, to be paid over to the defendants, Louis Bergstrom and John F. Hansen, and that the purchase, handling, and shipment of said bones and produce was to be done by the defendant John F. Hansen in person; that, in accordance with said agreement, the defendants, with Oscar Bergstrom as surety, executed and delivered to plaintiff the note sued upon, and defendants, Louis Bergstrom and John F. Hansen, executed and delivered to plaintiff the remaining notes before set out, whereby plaintiff became liable and bound to deliver to defendant John F. Hansen, within a reasonable time, at Brownsville, Texas, 1,000 tons of bones, at five Mexican dollars per ton, and to furnish to said defendant $20,000 with which to buy bones and other produce at Brownsville, Texas; that thereafter the said defendant John F. Hansen went to Brownsville,...