Hargrove v. Insurance Inv. Corporation

• Decision Date: 05 January 1944
• Docket Number: No. 8148.,8148.
• Citation: 176 S.W.2d 744
• Parties: HARGROVE et al. v. INSURANCE INV. CORPORATION.
• Court: Texas Supreme Court

176 S.W.2d 744

HARGROVE et al. v. INSURANCE INV. CORPORATION.

No. 8148.

Supreme Court of Texas.

January 5, 1944.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Mrs. Vera Siler Hargrove and another against the Insurance Investment Corporation to recover on a note. To review a judgment of the Court of Civil Appeals, 171 S.W.2d 384, which dismissed defendant's appeal from a judgment, plaintiffs bring error.

Judgment of Court of Civil Appeals reversed, and cause remanded to that court.

J. B. Lewright, of San Antonio, for plaintiffs in error.

Carlton & Street, of Dallas, for defendant in error.

SMEDLEY, Commissioner.

One question is presented: Was the judgment rendered herein by the district court final for the purposes of an appeal? The Court of Civil Appeals held that the judgment was not final and dismissed the appeal. 171 S.W.2d 384.

While there were several preliminary agreements between the parties, the suit, as tried, is on a contract in the form of a note, with a number of additional provisions, whereby respondent, Insurance Investment Corporation, promised to pay petitioner, Mrs. Hargrove, the total sum of $31,771.20. The note was given in payment for 6,688 shares of stock of Teachers Annuity Life Insurance Company. It is payable in monthly installments, the first of $1,000 on March 16, 1942, and subsequent installments of $500 each on the 16th day of each month thereafter "until the several sums thus payable and like sums to be held and retained by the maker hereof on account of the pendency of the lawsuit brought by Santa Fe National Life Insurance Company against Teachers Annuity Life Insurance Company, in a district court of Bexar County, Texas, shall total the full amount of the principal sum of this note, to wit, $31,771.20."

The note provides that on the 16th day of each month the maker will credit on its books to Mrs. Hargrove a like amount to the amount payable under the terms of the note and that all amounts so credited shall be retained until final disposition of the suit brought by Santa Fe National Life Insurance Company and shall be applied, but not in excess of $17,500, to the payment of one-half of the amount of the judgment that may be recovered by the said Santa Fe Insurance Company against Teachers Annuity Life Insurance Company, the remainder of the retained funds to be paid to Mrs. Hargrove. The note further provides for maturity of all unpaid installments, at the holder's option, if any installment becomes delinquent and so remains for thirty days, and it is secured by the pledge of a certificate for 3,344 shares of the capital stock of Teachers Annuity Life Insurance Company.

The petition filed by Mrs. Hargrove and her husband, on which the case was tried, alleges the sale by Mrs. Hargrove of the 6,688 shares of stock of Teachers Annuity Life Insurance Company to Insurance Investment Corporation, the execution of the several preliminary contracts and the execution and provisions of the note for $31,771.20, above described, including the pledge of the certificate for 3344 shares of stock as security for the note. It alleges default in payments due according to the terms of the note and that the suit by Santa Fe Life Insurance Company against Teachers Annuity Life Insurance Company is still pending and prays judgment for the whole amount owing to plaintiff and for general relief. The supplemental petition, which the trial court at plaintiff's request treated as a trial amendment, alleges further defaults in payments due according to the terms of the note and plaintiff's election to mature the full amount agreed to be paid and prays for judgment for the whole amount evidenced by the note.

The trial answer of respondent, which was defendant in the district court, denies the plaintiff's allegations and prays for judgment canceling and holding for naught the contracts and instruments described in the petition. As grounds for their cancellation it alleges particularly that Mrs. Hargrove did not own 6,688 shares of the stock of Teachers Annuity Life Insurance Company but owned only 5,688 shares; that the contracts never became effective and the consideration therefor wholly failed because plaintiff verbally agreed that they were not to be effective until she obtained and delivered to defendant one thousand shares of the stock of Teachers Annuity Life Insurance Company then held by the Treasurer of the State of Texas and those shares were never obtained; that the contracts should be cancelled because plaintiff and her husband represented that Teachers Annuity Life Insurance Company was solvent and owned property worth at least $270,000, whereas in truth the corporation was insolvent and the value of the property was far less than that represented by plaintiff; and that the contracts should be canceled because they were never actually delivered to plaintiff but were left with her attorney with the agreement that they would be held by him until plaintiff procured the release of the one thousand shares of stock held by the State Treasurer.

The judgment of the district court, after recitals showing the appearance of the parties, the introduction of evidence and the return of a verdict favorable to the plaintiff, the petitioner, pursuant to peremptory instruction, contains the following paragraphs:

"It is, therefore, considered by the court, and is here ordered, adjudged and decreed by the court, as follows, to-wit:

"1. That plaintiff, Mrs. Vera Siler Hargrove do have and recover of and from defendant, Insurance Investment Corporation, as a part of her separate estate, the sum of Fifteen Thousand, Eight Hundred Eighty-five and 60/100 Dollars ($15,885.60), with six per cent (6%) interest thereon from this date until paid, and for collection of which she may have her execution in terms of the law;

"2. That defendant, Insurance Investment Corporation, is justly indebted to said Mrs. Vera Siler Hargrove, as a part of her separate estate, in the further or additional sum of Fifteen Thousand, Eight Hundred Eighty-five and 60/100 Dollars ($15,885.60), but that she is not entitled to receive or demand or collect last mentioned sum from said Insurance Investment Corporation unless and until final disposition shall be made by the courts of that certain lawsuit now pending in a District Court of Bexar County, Texas, which suit was instituted in 1941, against Teachers Annuity Life Insurance Company against (by) Santa Fe National Life Insurance Company of Albuquerque, New Mexico.

"3. That said Mrs. Vera Siler Hargrove has a valid and subsisting lien on certificate No. 224 of date March 7, 1942, for 3344 shares of the capital stock of said Teachers Annuity Life Insurance Company of San Antonio, Texas, as security for the payment to her of the several sums of money herein found by the court as owing to her by said Insurance Investment Corporation, and further that her said lien on said certificate for said shares of stock be, and it is hereby, in all things foreclosed and further that said certificate be sold as under execution by the sheriff or any constable of Bexar County, Texas, and that the proceeds of the sale thereof be applied in payment or partial payment of said sum of $15,885.60, with legal interest as aforesaid, herein awarded and granted to said Mrs. Vera Siler Hargrove, as a part of her separate estate, against said Insurance Investment Corporation; and further that if said certificate No. 224 for said 3344 shares of stock shall thus sell for more than said sum of $15,885.60, with 6% interest aforesaid, and all costs of this suit, then and in any such event the surplus of the proceeds of any such sale thereof, over and above said sum of $15,885.60 and the costs of this suit, plus interest aforesaid, shall be by the officer selling said certificate No. 224 deposited in the registry of this court there to remain pending final disposition of said pending suit brought against Teachers Annuity Life Insurance Company by Santa Fe National Life Insurance Company, as aforesaid, following which final disposition of said pending cause said Mrs. Vera Siler Hargrove and said Insurance Investment Corporation shall have the right, either or both, to apply to this court for further order and disposition of any such sum which may thus be deposited in the registry of this court pursuant to this judgment; provided, also, that defendant, Insurance Investment Corporation, shall be given a credit upon the amount found by the Court that it is indebted to the plaintiff, Vera Siler Hargrove, in paragraph 2 aforesaid of this judgment of the Court, for one-half of any amount it may pay upon any final judgment in said suit of Santa Fe National Life Insurance Company of Albuquerque, New Mexico, or one-half of any amount it may pay...