Hunter v. Lanius

• Decision Date: 12 January 1892
• Citation: 18 S.W. 201
• Parties: HUNTER <I>et al.</I> v. LANIUS <I>et al.</I>
• Court: Texas Supreme Court

18 S.W. 201

HUNTER et al. v. LANIUS et al.

Supreme Court of Texas.

January 12, 1892.

Commissioners' decision. Section B. Appeal from district court, Clay county.

Action on a promissory note by Hunter, Evans & Co. against Phil Lanius and others. Verdict and judgment for defendants. Plaintiffs appeal. Reversed.

Hazlewood & Templeton, for appellants. Barrett & Stine, for appellees.

TARLTON, J.

This suit was instituted August 26, 1886, by Hunter, Evans & Co. against Phil Lanius, Powell Cole, J. B. Morgan, and A. V. Winter. Appellants sought to recover the principal sum of $2,315.06, alleged to be due on a promissory note for that sum executed by defendants to the order of plaintiffs, dated December 26, 1885, and payable August 1, 1886. The defendant Powell Cole having died intestate February 22, 1886, the suit was at the October term of the court dismissed as to him. October 16, 1886, appellants properly presented to B. T. Hewett, one of the appellees, who had, in the mean time, been appointed administrator of Cole's estate, the note in suit, as a claim against that estate. Hewett rejected the claim, and on January 14, 1887, appellants instituted suit against him as administrator. The suit so brought was at the March term, 1887, consolidated with this action. The defense mainly relied upon is that Lanius, as appellants knew, was the principal, and the remaining defendants were sureties, on the note sued on; that the note was executed in lieu of, and as a substitute for, a certain note for $5,000 previously executed, on May 16, 1885, to the order of plaintiffs, by Phil Lanius, with Cyrus Eakman and J. D. Orton as sureties: that the note for $5,000 was mere accommodation paper, and was without consideration, and that the note sued on, subject to like infirmities, was also wholly without consideration. Appellants, in reply to the plea of failure of consideration, allege that appellees are estopped from urging such plea, because of the following facts: On September 1, 1885, being the owners of the $5,000 note, appellants brought suit thereon against Lanius, Eakman, and Orton, suing out an attachment, which they caused to be levied on certain lands of defendants. During the pendency of this suit, Lanius came to the attorneys of plaintiffs, representing that he was the principal on the note for $5,000; that on the note there was yet due the sum of $2,315.06, but no more; that if plaintiffs would dismiss their suit on the $5,000 note he would execute a note, with other solvent obligors, for $2,315.06, in favor of plaintiffs. Hunter, Evans & Co. accepted this proposition. Lanius accordingly executed with his co-obligators the note sued on in this case, and plaintiffs dismissed their attachment suit, paying all costs. October 3, 1888, the jury rendered a verdict for the defendants, and from the judgment thereon entered plaintiffs prosecute this appeal. The appellee Hewett, administrator, in addition to the defense urged by his co-defendants, claims that suit was not brought against him within 90 days after the rejection of the claim, and that appellants cannot, therefore, maintain their action against him. We shall first dispose of this contention. On the 16th of October, 1886, at 12 M., appellants presented the claim to the administrator, when it was rejected by him. January 14, 1887, suit was filed against the administrator. The question is whether, in computing the number of days, the day of the presentation shall be included or excluded. In the former event, the suit was brought on the ninety-first day; in the latter, it was brought on the ninetieth day, and was in time. Our statute¹ provides that the owner of a rejected claim "may within ninety days after such rejection, and not thereafter, bring a suit" against the administrator for its establishment. It has been held that the provisions of this statute with reference to the time within which the suit is to be instituted are analogous to those providing for new trials, appeals, and writs of error. If the claim, when presented to the administrator, be granted, it becomes a judgment against the estate; if it be rejected, the further remedy by suit is in the nature of an appeal from the action of the administrator, to be prosecuted within 90 days after the rejection. Cotton v. Jones, 37 Tex. 34. In the case of Burr v. Lewis, 6 Tex. 81, under a statute requiring that an appellant must, within 20 days after the term, give bond for the prosecution of an appeal, our supreme court stated the rule to be, "respecting the computation of time, that, where it is to be computed from or after a certain day from an act done, the day on which the act is done is to be excluded, unless it appears that a different computation was intended." It does not appear to us, with reference to the statute, that a different computation was intended. The time should be reckoned, excluding the day of the rejection of the claim.

As disclosed by the record, the first reference to a note for $5,000 similar in description to the one charged by appellees to have been mere accommodation paper is found in a letter from Hunter, Evans & Co. to Lanius, bearing date May 9, 1885, as follows, viz.: "We have concluded that you would probably need some money to make advances on small bunches of cattle in small amounts to control that class of shippers. We inclose you note for $5,000, 90 days, payable here. If you will make same with two securities, O. K., we can use it; place the money to your credit, and you can draw it out in sums to suit your convenience in controlling small shippers. Use it to the best possible advantage for the most business," etc. On May 13, 1885, Lanius, who testified that it took about three days for a letter to come from Chicago to Henrietta, wrote to appellants as follows: "Henrietta, Texas, May 13, 1885. Messrs. Hunter, Evans & Co., Chicago — Dear Sirs: I am in receipt of yours, and I will sign the note, and have two good men to sign it with me, and send it back to you in a day or so." Lanius on the trial testified that he did not like the tone of the letter of May 9th. That it indicated, as he thought, an intention by appellants to hold him responsible on the note. That he thereupon at once wrote appellants that he would not sign the note, and that a short time thereafter, between the 10th and 15th of May, he received from appellants, inclosing the $5,000 note, a letter of the following purport: "We herewith inclose you a note for $5,000. Please sign it, and have two good men to sign it with you, and return it to us, so we can indorse it and put it up in the bank, and get money on it for you to advance to small shippers. We want the note to raise money on, and you will not be responsible on it." That on receipt of this letter he, with his sureties, signed the $5,000 note, and returned it to appellants. Lanius further testified that this letter was lost; that he gave it to one Eakman, who never returned it to him; that, with the help of Eakman, he had searched through his own and Eakman's desks, and through his and Eakman's papers, and in all places where the letter could likely be found. With reference to the search made, Lanius was corroborated by Eakman. Objection was interposed to the introduction of this testimony, on the grounds that the absence of the letter was not sufficiently accounted for; that its existence had not been sufficiently proven; that the testimony was not admissible to impeach the consideration of the note sued on; and that it was sought thereby to establish a prior agreement at variance with a written contract. We sustain the action of the court, assigned as error, in overruling the objection urged. The testimony as to the existence and loss of the letter, and of the search for it, was, we think, sufficient to authorize the introduction of secondary evidence of its contents. Its existence was sworn to, and inquiry and search from the proper persons and in the proper places had been shown. Vandergriff v. Piercy, 59 Tex. 371. The testimony in attacking the consideration of the $5,000 note tended to impeach the consideration of the note sued on, executed in lieu of the former. The agreement that the note should be mere accommodation paper entered, if true, into the consideration for its execution, and, while it varied the terms of the written instrument, such variance is usually, if not necessarily, the effect of evidence supporting a plea of failure or want of consideration. The testimony was admissible, and though, in the mind of the court, the statement might have appeared unreasonable, its truth was yet a question for the determination of the jury. If the finding by the jury be against the weight of the evidence on a material...