Kluck v. Spitzer

• Decision Date: 03 November 1932
• Docket Number: No. 1275.,1275.
• Citation: 54 S.W.2d 1063
• Parties: KLUCK v. SPITZER et al.
• Court: Texas Court of Appeals

54 S.W.2d 1063

KLUCK v. SPITZER et al.

No. 1275.

Court of Civil Appeals of Texas. Waco.

November 3, 1932.

Rehearing Denied December 22, 1932.

Appeal from District Court, Falls County; E. M. Dodson, Judge.

Suit by O. C. Spitzer and others against Gus Kluck and another, wherein the defendants file cross-actions. From the judgment rendered, the defendant named appeals.

Affirmed.

John McNamara and J. W. Spivey, both of Waco, for appellant.

Cecil R. Glass and Bartlett, Carter & Rice, all of Marlin, for appellees.

GALLAGHER, C. J.

A clear understanding of the issues involved in this suit will be facilitated by a brief statement of the transactions out of which the same arose. J. S. Watson and wife, on the 10th day of January, 1919, conveyed to L. A. Bletsch two adjoining tracts of land, one of which will be hereinafter designated as the 50-acre tract and the other as the 20-acre tract. In consideration of such transfer, said L. A. Bletsch executed and delivered to appellant, Gus Kluck, his promissory note of even date with the deed for the sum of $1,500, payable on January 10, 1922, and also executed and delivered to appellee Peter Jund his promissory note of even date with the deed for the sum of $3,500, payable on January 10, 1924. The vendor's lien was expressly retained to secure both said notes. Said L. A. Bletsch thereafter sold and conveyed both said tracts of land to Rudolph Sonntag, and he assumed the payment of both said notes. Said Sonntag thereafter sold and conveyed both said tracts to M. A. Bletsch and J. J. Thompson, who also assumed the payment of both said notes. Said M. A. Bletsch and said Thompson thereafter sold and conveyed the 50-acre tract to said Rudolph Sonntag, and he assumed the payment of both said notes. Said Sonntag thereafter sold and conveyed said 50-acre tract to O. C. Spitzer, who assumed the payment of both said notes. Said Spitzer thereafter, on December 27, 1930, sold and conveyed said 50-acre tract to appellant, Gus Kluck. Appellees all contended that a part of the consideration for said last recited conveyance was the cancellation by Kluck of his $1,500 note as aforesaid and the agreement on his part to pay off and satisfy the $3,500 note held against both said tracts by appellee Jund. No such recital was contained in said deed. Appellant's $1,500 note had theretofore been duly extended to mature, and it did mature on January 1, 1927. Appellee Jund's $3,500 note had been theretofore extended to mature, and it did mature, on January 10, 1930.

This suit was instituted on April 30, 1931, by appellees L. A. Bletsch, Rudolph Sonntag, M. A. Bletsch, J. J. Thompson, and O. C. Spitzer, against appellant, Gus Kluck, and appellee Peter Jund. They alleged, in substance, that by the transactions aforesaid the $1,500 note held by appellant, Kluck, had been satisfied and discharged, and that he had, by his alleged assumption of the $3,500 note held by said Jund, become principal obligor thereon, and that they had become sureties only for the payment thereof; that said note constituted a lien upon the 20-acre tract then held by said M. A. Bletsch and J. J. Thompson as aforesaid. They demanded in their petition that Jund, by cross-action or otherwise, bring suit for the collection of his said note and the enforcement of the lien, and, in event he failed to do so to the next term of the district court of said county, that they be released from further liability for the payment of said note. Jund, by cross-action filed in this cause, sought recovery on said note for the amount thereof, with interest and attorney's fees as stipulated therein, and for a foreclosure of his lien on both said tracts of land to enforce the payment of such recovery. Kluck denied that he agreed as a part of the consideration to cancel his $1,500 note or to pay the $3,500 note held by Jund. He sought recovery on his note for the full amount thereof, with foreclosure of lien on both said tracts of land to enforce any recovery awarded him, and prayed for an equitable adjustment of rights between him and Jund. Said pleading was filed December 7, 1931. Appellees L. A. Bletsch and others, original plaintiffs herein, pleaded the statute of limitation of four years (Rev. St. 1925, art. 5527) in bar of recovery on the $1,500 note sued on by appellant. Appellees M. A. Bletsch and Thompson alleged that they were the owners of the 20-acre tract; that Jund's lien covered both tracts, and asked that the 50-acre tract be sold and the proceeds thereof applied to the satisfaction of Jund's debt before any sale of the 20-acre tract.

The case came on for trial before a jury on the 7th day of December, 1931. The several conveyances above recited were introduced in evidence, and the assumption by each successive vendee or vendees, to and including Spitzer, was shown. The $3,500 note held by Jund and the extension of time of payment thereof, as above recited, were introduced in evidence. The testimony disclosed that the transfer of the 50-acre tract from Spitzer to Kluck was negotiated by and consummated through one Somervell as agent and attorney in fact for Kluck. While he was being examined with reference to the consideration for said conveyance, some issue as to the admissibility of his testimony was raised, and the jury was retired by the court. In the absence of the jury, he testified that he never had any intention or purpose of denying Jund's lien on the 50-acre tract; that Jund's lien covered both the 50-acre tract and the 20-acre tract, and that he intended that Jund should assert his lien against both tracts; that he told Kluck that he would have to pay the Jund claim, and that Kluck was always ready to do so when Jund "cleared the 20 acres in addition to the 50." Based on said statement, the several parties began negotiations for the settlement of all controversies between them and the entering of an agreed judgment in the case. Such agreement was perfected, a notation thereof made on the docket of the court, and the jury discharged. No judgment was entered of record at that term of court.

Appellee Jund, on the 13th day of January, 1932, at the next succeeding term of court, filed herein a pleading which he termed his supplemental answer and cross-action. He alleged that a full settlement of all the matters...