Kansas City Life Ins. Co. v. Duvall
| Decision Date | 18 May 1939 |
| Docket Number | No. 2077.,2077. |
| Citation | 129 S.W.2d 770 |
| Parties | KANSAS CITY LIFE INS. CO. v. DUVALL et ux. |
| Court | Texas Court of Appeals |
Hamilton, Lipscomb, Wood & Swift, of Dallas, for plaintiff in error.
W. V. Dunnam, of Waco, for defendants in error.
W. H. Duvall and wife filed suit on December 26, 1933, against Kansas City Life Insurance Company and the substitute trustee in deed of trust, after maturity of their indebtedness and default in payment, to prevent sale of certain described lands under power contained in deed of trust executed by them on December 8, 1922, and made the following allegations, to-wit: "Plaintiffs further make known to the court that the amount of debt due and owing to the defendant, Kansas City Life Insurance Company, is in dispute; that said defendant corporation is claiming an indebtedness on said land in excess of $20,000.00; and plaintiffs say that the debt due and owing to said defendant does not exceed the sum of $6,000.00, which sum they are willing to tender into court if defendant is willing to accept the same, and further say that they are willing and here now offer to do full and complete equity under the judgment and orders of the court." The trial court entered judgment on October 1, 1937, in favor of Kansas City Life Insurance Company against W. H. Duvall for the sum of $9,513.98, being the amount of principal determined by the court due as of January 1, 1933, plus interest from January 1, 1933, to December 26, 1933, at six per cent, and awarded foreclosure of lien in favor of Kansas City Life Insurance Company against W. H. Duvall and wife, Lela May Duvall, on the 363½ acres involved, but denied Kansas City Life Insurance Company interest from December 26, 1933, to October 1, 1937, and attorney's fees and costs of suit.
Plaintiff in error contends that the trial court erred in holding that the alleged tender made by the Duvalls in their petition was sufficient to stop the running of interest and to prevent the accrual of attorney's fees stipulated for in the contract. This assignment is sustained.
W. H. Duvall and wife, Lela May Duvall, on December 8, 1922, executed and delivered to Realty Trust Company four principal notes in the sum of $500 each and one in the sum of $15,000, payable respectively on January 1, 1928, 1929, 1930, 1931 and 1933, with attached interest coupons providing for interest at the rate of six per cent per annum on said principal indebtedness. Each of the notes bore interest at the rate of ten per cent per annum after maturity and stipulated that an additional sum of ten per cent of the amount due thereon should be paid as attorney's fees if the notes should be placed in the hands of an attorney for collection or be proven or established in any court. Plaintiff in error filed its first amended original answer and cross action on December 3, 1934, in which it sought judgment for the principal amount of the notes, interest, attorney's fees, costs of suit and foreclosure of lien. The trial court found that the amount of principal due on the notes as of January 1, 1933 was the sum of $8,979.64, and that the amount of principal and interest due as of December 26, 1933 was $9,513.98, the date defendants in error filed their suit. Defendant in error Duvall appeared as a witness in his behalf in the trial of the case and testified that the $500 note maturing January 1, 1928, had been paid; that he quit making payments on the indebtedness in 1933 but did not testify that he was able, ready and willing to pay the amounts due as they matured, or that he was ever at any time ready, willing or able to pay any amount in satisfaction of the indebtedness.
The occasion for placing the notes, after maturity and default in payment, in the hands of its attorneys was left entirely to plaintiff in error's judgment, and when the notes were given to its attorneys for collection, their fees became as much a part of the amount to be paid as the principal or interest. Martin-Brown Co. v. Perrill, 77 Tex. 199, 13 S.W. 975. Plaintiff in error, as the holder of the notes containing stipulation for attorney's fees if notes were placed in the hands of attorneys for collection, were prima facie entitled to recover stipulated amount upon the happening of the event,...
To continue reading
Request your trial
-
H. B. Zachry Co. v. Ceco Steel Products Corp.
...'drafts' for such amounts. This did not establish a legal tender. Cornelius v. Cook, Tex.Civ.App., 213 S.W.2d 767; Kansas City Life Ins. Co. v. Duvall, 129 S.W.2d 770; Baucum v. Great American Ins. Co. (Sup.Ct.) 370 S.W.2d 863. Point 57 is In points 55 and 56 appellants insist the court err......
-
Duvall v. Clark
...for rehearing 104 S.W.2d 10, opinion by Supreme Court, 129 Tex. 287, 104 S.W.2d 11. The second appeal is reported in Kansas City Life Ins. Co. v. Duvall, 129 S.W.2d 770. A comprehensive statement of the facts and the law applicable thereto will be found in the foregoing opinions. The third ......
-
Kinzbach Tool Co. v. Corbett-Wallace Corporation
...must include everthing to which the creditor is entitled and that a tender for anything less is ineffectual. Kansas City Life Ins. Co. v. Duvall, Tex.Civ.App., 129 S.W.2d 770. In the case of Barreda v. Merchants' National Bank, Tex.Civ.App., 206 S.W. 726, it was claimed by appellant that a ......
-
French v. May
...to which the creditor is entitled, and a tender of any less sum is ineffectual. Jones v. Jones, 49 Tex. 683 (1878); Kansas City Life Ins. Co. v. Duvall, 129 S.W.2d 770 (Tex.Civ.App.-- Waco 1939, n.w.h.); Tucker v. McCullough, 209 S.W. 236 (Tex.Civ.App.--Texarkana 1919, n.w.h.). After defaul......