Howeth v. Davenport
| Decision Date | 19 February 1958 |
| Docket Number | No. 13275,13275 |
| Parties | Ike K. HOWETH, Appellant, v. Dee DAVENPORT, Appellee. |
| Court | Texas Court of Appeals |
Dyess, Dyess & Prewett, Houston, Morrison, Dittmar, Dahlgren & Kaine, San Antonio, for appellant.
Matthews, Nowlin, Macfarlane & Barrett, Lewis T. Tarver, Jr., San Antonio, for appellee.
This is a suit on a note in the principal sum of $9,668.47, payable on demand to the order of Dee Davenport, appellee herein, dated April 1, 1947, and signed by Ike K. Howeth, appellant herein, the note allegedly representing a settlement of accounts between the parties, covering a course of dealing for a number of years. The suit was also for the sum of $716.87 on open account made after the execution of the note by Howeth to Davenport. The suit was filed on August 18, 1950. On September 16, 1950, Howeth answered, stating that the note represented no obligation of his, that it was signed with an understanding that it would never be presented for payment and was to be nothing more than a memorandum for Davenport's files. Howeth also filed a cross-action in the sum of $Sec.64,500. On October 9, 1950, Davenport filed his answer to Howeth's cross-action. Thereafter, there was some correspondence between the attorneys for the parties.
On March 26, 1956, Howeth filed a motion to dismiss the cause for want of prosecution, and on April 2, 1956, Davenport filed his reply tehreto. The trial court heard evidence on the motion to dismiss and overruled the same.
The parties filed amended pleadings and the cause went to trial before a jury on April 15, 1957. Howeth, in order to gain the right to open and close, both the introduction of evidence and the making of the argument, filed an admission under the provisions of Rule 266, Texas Rules of Civil Procedure.
At the close of the evidence the trial court granted Davenport's motion for an instructed verdict and rendered judgment that Davenport recover from Howeth the amount of principal, interest and attorney's fees due on the note sued on, and also the sum of $716.87, together with interest, due on open account, all of which figures are set out in detail in the judgment.
Appellant's first point is that the court erred in not sustaining his motion to dismiss the cause for want of prosecution.
The evidence shows that Davenport and Howeth, at one time, were personal friends and business associates in the oil business, sometimes as partners and sometimes as individuals. The indebtedness was allegedly the result of a long course of dealing, through the years, resulting in the filing of suit in 1950. After the suit was filed there was some correspondence between Arthur D. Dyess, Jr., Esq., attorney for Howeth, and W. F. Nowlin, Esq., attorney for Davenport. Dyess practiced law in Houston, Texas, and Nowlin in San Antonio. Nowlin, by way of settlement, suggested that Howeth make monthly payments, which offer was refused by Dyess.
On October 30, 1952, Dyees wrote to Nowlin, stating among other things that he had hoped, due to the friendship which had existed between the parties over a mumber of years, am amicable settlement could be worked out on terms mutually satisfactory to them. Nowlin replied some time later, stating that he felt it would be agreeable to Davenport if Howeth would make partial payments, and further stating he realized that Howeth was entitled to a trial, and he would request a setting of the case at Dyess' convenience....
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