Johnson v. Portwood

• Decision Date: 26 October 1895
• Citation: 34 S.W. 787
• Parties: JOHNSON v. PORTWOOD (LONG, Intervener).
• Court: Texas Court of Appeals

34 S.W. 787

JOHNSON v. PORTWOOD (LONG, Intervener).

Court of Civil Appeals of Texas.

October 26, 1895.

Error from district court, Tarrant county; W. D. Harris, Judge.

Statement of the case, with conclusions of fact:

Suit brought April 2, 1892, in debt and for foreclosure of a vendor's lien, by D. Portwood, P. A. Huffman, and D. J. Nelson, against Henry V. Johnson. November 21, 1893, R. A. Long intervened, making common cause with the defendant, praying for specific relief. November 25, 1893, judgment for plaintiffs Portwood and Huffman, against defendant, Johnson, for amount of their debt as sued for, less certain credits, and for foreclosure of their lien; for defendant, Johnson, against the plaintiff Nelson (on account of a settlement between them pending suit), and against the intervener, Long. From this judgment, the defendant and intervener bring error. Reversed.

On August 19, 1890, D. Portwood, P. A. Huffman, and D. J. Nelson conveyed, by deed to H. V. Johnson, 236 acres of land, described by metes and bounds, out of the John Thornhill 640-acre survey, in Tarrant county. In consideration of this conveyance, the grantee, Johnson, at that date, executed and delivered to the grantors six promissory notes, each retaining the vendor's lien, maturing, three of them in one year, and three in two years. Two of these notes, for the sum each of $4,216.66, drawing interest at 10 per cent. from date, and providing, in the event of suit, for 10 per cent. of the whole as attorney's fees, became the property of D. Portwood. Two of them, for the sum of $2,108.33 each, with similar provisions as to interest and attorney's fees, became the property of P. A. Huffman. The remaining two, each for $2,108.33, with similar provisions, became the property of D. J. Nelson. The note of Portwood first maturing bears a credit, of date January 19, 1892, of $3,283.16; the note of Huffman first maturing bears a credit, of same date, of $1,641.58; and the note of Nelson first maturing bears a similar credit. On January 7, 1892, the plaintiffs herein instituted suit in the district court of Tarrant county upon these notes against the defendant. On January 28, 1892, a payment of $6,566.33 having been made by defendant, and credited upon the notes in the manner above indicated, the plaintiffs addressed the following letter to John C. Harrison, of Ft. Worth, Tex. (Exhibit A): "Fort Worth, Texas, Jan. 28, 1892. John C. Harrison, Esq., Fort Worth, Texas— Dear Sir: On final payment to you of $4,256.40, and $6.85 interest on old notes, and interest from the 19th of January, 1892, please deliver to Robt. McCart, for account of H. V. Johnson, all notes held by you for account of D. Portwood, P. A. Huffman, and D. J. Nelson against said H. V. Johnson, and turn over to said Robt. McCart the release deed hereto attached, upon delivery to you of a deed from H. V. Johnson to said Portwood, Huffman, and Nelson for one-third of said real estate. Said H. V. Johnson is to have abstract brought down to date of said property, showing that there have been no liens or incumbrances upon said lands since the same was purchased by said H. V. Johnson. Said money is to be paid by H. V. Johnson within thirty days from this date. [Signed] P. A. Huffman. D. J. Nelson. D. Portwood." Accompanying this agreement or letter of instructions was a release deed of two-thirds of the land, signed by the payees of the notes, to be delivered to Johnson by Harrison on compliance with the conditions named in the agreement. On January 29, 1892, the parties to the suit brought January 7th signed the following agreement of dismissal (Exhibit B): "Portwood, Huffman & Nelson vs. H. V. Johnson. Suit Pending in District Court, Tarrant County. The above case is to be dismissed, at the cost of the plaintiffs. [Signed] D. Portwood. P. A. Huffman. D. J. Nelson. Wynne, McCart & Booty, Attorneys for Defendant." The suit was accordingly dismissed. The conditions named in the foregoing letter of instructions not having been complied with by the defendant, Johnson, the plaintiffs, after the lapse of the 30 days there provided for, viz. on March 3, 1892, withdrew the letter of instructions and the release deed accompanying it, and instituted this suit, as already indicated. Pending the suit, and before the trial, the defendant settled with the plaintiff Nelson, the former paying in the settlement the two notes held by Nelson, and reconveying to the latter an undivided one-twelfth interest in the land.

Wynne, McCart & Booty, for plaintiffs in error. Hunter, Stewart & Dunklin, for defendants in error.

TARLTON, C. J. (after stating the facts).

1. The court sustained seven specific objections urged by the plaintiffs as special exceptions, on the ground of alleged defects in the answer and trial amendment thereto filed by the defendant, Johnson. Of this action, as upon a general demurrer, complaint is made by the appellant Johnson in three assignments of error. Without setting out these assignments at length, it may be said that they assert the contention that the pleadings of the defendant condemned by the court present a defense to the plaintiffs' action in a twofold aspect: (1) That they show that on January 28, 1892, the defendant paid to the plaintiffs the sum of $6,566.33 in cash, and agreed to pay them within 30 days the sum of $4,256.40, "besides certain interest," and to execute a deed for an undivided one-third of the land in question; and that this agreement or promise, and not the performance thereof (Railway Co. v. Harriett, 80 Tex. 80, 15 S. W. 556), was accepted by the plaintiffs in full discharge and payment of the notes sued upon. (2) That, in any event, the defendant's averments show that, at the date named, the terms of settlement were agreed upon between the plaintiffs and defendant, and that the latter had complied with these terms and the obligations thereby imposed upon him; in other words, that there had been an accord and satisfaction with respect to the notes sued upon.

In the opinion of the writer, the pleadings of the defendant, measured by the legal effect of the averment of the facts therein stated, and not by the mere conclusions of the pleader, negative the existence of either of these defenses. It is deemed unnecessary to detail the numerous allegations of the pleadings referred to. Suffice it to state that the instruments set out in our conclusions of fact, viz. the letter of instructions to Harrison, termed an "agreement," and the dismissal of the suit of Portwood v. Johnson, are (as Exhibits A and B) made the basis of the defenses relied upon. Thus, it is alleged that "the two papers copies of which are hereto attached, together with those referred to in same, all have reference to the same matter, and constitute parts of each other, and all together constitute the agreement of the parties for the settlement of said lawsuit as hereinbefore stated." Looking, then, to the terms of the written agreement embodied in the letter to Harrison, does it appear therefrom that the plaintiffs agreed to accept any promise of the defendant in payment of the notes sued upon? Assuredly not, because it is plainly indicated that these notes are not to be surrendered until the performance within 30 days by defendant of certain conditions. The acceptance of the mere promise of the defendant as a payment of the obligations referred to is incompatible with the very terms of the instrument thus relied upon.

The writer is also of opinion that the defendant's averments, in the light of the terms of this written instrument, present, at most, the case of an accord without satisfaction. The agreement directs the surrender of the notes, provided that within 30 days the defendant will pay the sum of $4,256.40, besides certain interest; that he will execute a deed to one-third of the land; and that he will present an abstract of the title to the property, showing that, since his purchase from the plaintiffs, no liens or incumbrances had been placed upon it. The defendant's allegations show that he failed to comply with these conditions within the period stated. They show a tender of performance (with a refusal by the plaintiffs) for the first time on the 30th day of March, quite a month after the expiration of the stipulated term. In Overton v. Conner, 50 Tex. 113, it is held that, to be operative, "the accord and satisfaction must be finally and fully consummated by the parties in accordance with its terms and stipulations." This case is approved and followed in Railway Co. v. Gordon, 70 Tex. 80, 7 S. W. 695.

The writer sees no escape from the conclusion that, having failed to pay the money and otherwise to comply with the terms prescribed in the agreement, the defendant is entitled to no relief thereunder. Had a tender of compliance been made and refused during the period provided by the contract, this, it seems, under the doctrine prevalent here, would have been equivalent to a satisfaction of the award. Bradshaw v. Davis, 12 Tex. 336. But a tender after the lapse of that period should not, in this instance, suffice. Here it was within the option of the defendant to make or abstain from making the stipulated payment. His failure to exercise the option or privilege growing out of the agreement of the plaintiffs was attended by the creation of no cause of action in favor of the plaintiffs against him on account of the contract. The payment of $6,566.33 at the date of the execution of the agreement was but the payment of less even than he then owed. If he deemed the...