Lanius v. Shuler

• Decision Date: 15 April 1890
• Citation: 13 S.W. 614
• Court: Texas Supreme Court
• Parties: LANIUS <I>et al.</I> <I>v.</I> SHULER.

13 S.W. 614

LANIUS et al.

v. SHULER.

Supreme Court of Texas.

April 15, 1890.

Appeal from district court, Clay county.

Action by H. B. Shuler against Phil Lanius, A. E. Ray, Frank Houston, and B. F. Denson. Judgment for plaintiff, defendants' motion for new trial overruled, and they appeal.

A. K. Swan and J. C. Chestnutt, for appellants. Hazlewood & Templeton, for appellee.

HENRY, J.

This suit was instituted by appellee to recover upon a promissory note. The defendant Lanius pleaded under oath that the only consideration for the note was an offer made by plaintiff, through an agent, to lend him the amount of money recited in the note; that the note was signed and delivered to the agent of plaintiff for the purpose of being submitted to plaintiff for his approval before it was delivered, but the money was never furnished, and defendant was notified through said agent that the note was not accepted. Defendant Houston answered that the note was given by Lanius, as principal, for borrowed money, and that he signed the note as a surety; that he was induced to sign it by false and fraudulent representations made to him by the agent of the lender, "that the said Phil Lanius was borrowing the money for which the note was given for the purpose of buying cattle therewith; that said money was then in C. W. Israel & Co.'s bank, of which said G. A. Archibald was then cashier, and that the same would not be paid or delivered to the said Lanius for any other purpose than to buy said cattle, and that plaintiff's said agent (Archibald) would not let said Lanius have said money until he should have bought the cattle to be paid for with same, and that when said cattle were so bought, and before said money should be paid or delivered to said Lanius, or by him taken out of said bank, he, the said Archibald, would require the said Lanius to make and execute to this defendant a good and sufficient chattel mortgage on said cattle so bought with said money, and deliver the same to the said Archibald, to be by him kept and delivered to the defendant, to save him harmless from loss or liability on account of said note;" "that the plaintiff, by his agent, Archibald, agreed with this defendant and promised him, at and before the signing of said note, that he would not deliver to said Lanius said money, or permit him to withdraw the same from the said bank, until he, the said Lanius, should make and execute said mortgage on said cattle so bought and to be paid for with said money, so that ...