Johnson v. Neeley

• Decision Date: 12 March 1931
• Docket Number: No. 1025.,1025.
• Citation: 36 S.W.2d 799
• Parties: JOHNSON v. NEELEY et al.
• Court: Texas Court of Appeals

36 S.W.2d 799

JOHNSON v. NEELEY et al.

No. 1025.

Court of Civil Appeals of Texas. Waco.

March 12, 1931.

Rehearing Denied April 2, 1931.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by S. M. Neeley against E. A. Johnson and others, in which defendant Mrs. P. Delaney filed a cross-action. From the judgment, defendant named appeals.

Reversed and remanded for new trial in part, and affirmed in part.

Sam Dardnne and Willard McLaughlin, both of Waco, for appellant.

Richey & Sheehy, W. L. Eason, and Sleeper, Boynton & Kendall, all of Waco, for appellees.

GALLAGHER, C. J.

S. M. Neeley sued C. S. Simon and E. A. Johnson to recover a balance due on a promissory note executed by said Simon to E. D. Neeley and held by said S. M. Neeley under successive indorsements, and for foreclosure of a chattel mortgage given by said Simon on certain market fixtures to secure the payment of the same. S. M. Neeley alleged that said Simon sold the mortgaged property to said Johnson, and that he in turn sold the same to one Jim Jones, and that the purchaser at each of said sales assumed the payment of said note. He further alleged that said property was situated in a certain building on South Third street in Waco, Tex., known as the Square Market, and that Mrs. P. Delaney, the owner of said building, was claiming some interest in the same. He made her a party defendant in order to determine the nature and extent of her rights, if any. The parties to this litigation will hereinafter be designated by name. Said Jones was not made a party to the suit.

Mrs. Delaney filed a cross-action, in which she alleged that she was the owner of said building; that the same had been theretofore leased by her to Alexander, Neeley & Co. under a written lease, which had been with her consent transferred to said Simon; that said lease, at or about the time of the transfer to him, had been extended so as to expire May 31, 1929; that thereafter Simon either transferred the lease or sublet the premises to Johnson, who continued to pay rent thereon until September 1, 1928. She further alleged that, about the 1st day of April, Johnson complained that the building was out of repair, and that she then entered into an agreement with him by the terms of which the rent was reduced to the sum of $90 per month, and he obligated himself to make certain repairs on the building at his own expense and to continue to pay such rental monthly until the expiration of the lease on May 31, 1929. She further alleged that said building had never been surrendered to her, but had been continuously occupied by Johnson, or some one under his authority or permission, and that the stipulated rental had not been paid for the last nine months of said period, aggregating the sum of $810, for which she asked judgment. She also asserted a landlord's lien on all the property in said building, and asked for a foreclosure thereof.

Simon alleged that he sold the mortgaged property to Johnson, and that as part of the consideration therefor Johnson assumed and promised to pay the balance due on said note. He further alleged that said note was at that time held by the Citizens' National Bank, and that the bank, in consideration of said assumption, agreed to release him from further liability thereon.

Johnson denied that he assumed the payment of the balance due on said note, and alleged affirmatively that he purchased the mortgaged property subject to the indebtedness against the same. He alleged, in defense of Mrs. Delaney's demand for rent and foreclosure of landlord's lien, that he never knew of the existence of a written lease on said premises, and that, if such did exist, he never assumed the same. He further alleged that said leases, if any, were all oral and void under the statute of frauds. He further alleged that, prior to September 1, 1928, he ceased to occupy the building; that Mrs. Delaney knew that said Jones was occupying the same, and accepted rent from him.

The case was tried to a jury. The jury, on the issues arising between plaintiff, S. M. Neeley, and defendant Johnson, found, in substance, that: (a) The Citizens' National Bank owned the note at the time of the sale of the property by Simon to Johnson; (b) said bank did not agree to release Simon from liability and look alone to Johnson for the payment of said note; (c) Johnson, in the trade with Simon for the purchase of said property, agreed that he would assume the payment of said note. The jury, on the issues arising between Mrs. Delaney and Johnson, found, in substance, that: (a) Johnson agreed with W. M. Sleeper, as the representative of Mrs. Delaney, to pay rent on said building until May 31, 1929, at $90 per month; (b) said Sleeper, acting for Mrs. Delaney, did not agree with Johnson to release him from liability for rent after the occupancy of said building by Jones.

The court rendered judgment on the verdict of the jury in favor of S. M. Neeley against E. A. Johnson and C. S. Simon for the sum of $711.28, the balance due on said note, with foreclosure of the chattel mortgage upon all the property described therein as against all the parties to the suit. He also rendered judgment in favor of Simon against Johnson for all sums he might be required to pay in satisfaction of Neeley's recovery. He also rendered judgment in favor of Mrs. Delaney against Johnson for the sum of $810, rent on said building from September 1, 1928, until May 31, 1929. Johnson has perfected an appeal from said judgment.

Opinion.

Appellant, Johnson, presents a proposition in which he contends that the court erred in refusing to submit to the jury for determination his special requested issue as follows:

"In the trade between the defendant Simon and the defendant Johnson, did the defendant Johnson agree with the defendant Simon that he, Johnson, would purchase the property subject to the indebtedness against said property?"

The record shows without controversy that Simon executed the note sued on and secured the same by chattel mortgage on the personal property involved herein; that said note was in the possession of the Citizens' National Bank at the time of the trade between Simon and Johnson; that they went together to said bank and ascertained the exact balance due thereon; that Johnson purchased the property, and thereafter made several payments on said note. Plaintiff, Neeley, alleged that Johnson, as a part of the consideration for the purchase of said property from Simon, assumed and agreed to pay said note. He introduced testimony in support of such allegation. Johnson denied that he assumed the payment of said note, and pleaded affirmatively that he purchased said property subject to such debt and lien. He introduced testimony in support of such allegation. The court submitted an issue based on Neeley's theory of the transaction, in which he asked the jury to find whether Johnson agreed with Simon to assume the payment of said note. The jury answered such issue in the affirmative, and the judgment rendered by the court is based on such finding. Johnson's theory that he purchased the property subject to the debt and lien was not submitted. Johnson sought, by requesting the special issue above recited, to have such defense submitted to the jury for determination. His contention that he was entitled to such submission is supported by many authorities, of which we cite the following: Colorado & Southern Ry. Co. v. Rowe (Tex. Com. App.) 238 S. W. 908, 909 et seq.; Montrief v. Bragg (Tex. Com. App.) 2 S.W.(2d) 276, 277, par. 1, and authorities there cited; National Cash Register Co. v. Rider (Tex. Com. App.) 24 S.W.(2d)...