Levinski v. Middlesex Banking Co.

• Decision Date: 07 February 1899
• Docket Number: 735.
• Citation: 92 F. 449
• Parties: LEVINSKI v. MIDDLESEX BANKING CO.
• Court: U.S. Court of Appeals — Fifth Circuit

92 F. 449

LEVINSKI v. MIDDLESEX BANKING CO.

No. 735.

United States Court of Appeals, Fifth Circuit.

February 7, 1899

E. A Jones, W. M. Sleeper, D. C. Bolinger, and Geo. Clark, for plaintiff in error.

Bennett Hill and L. M. Dabney, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and PARLANGE, District judge.

McCORMICK Circuit Judge.

It appears from the defendant's petition for removal, marked 'Filed April 5, 1897,' that this case was then pending in the state district court of McLennan county, Tex and that the plaintiff was then seeking to recover of the defendant damages in the sum of $7,600. On the same day April 5, 1897, the state district court made its order of removal, reciting that the court having examined the petition and the bond for removal, and the petition showing on its face that the case is removable, and the bond being in the terms of the law, the same is approved by the court, and the case is ordered to be removed to the circuit court of the United States for the Northern district of Texas for further proceedings. On April 25, 1898, the plaintiff filed in the circuit court of the United States for the Northern district of Texas for further proceedings. On April 25, 1898, the plaintiff filed in the circuit court his second amended original petition, which, according to the practice in Texas took the place of his previous pleading; so that the original petition and the first amended original petition do not appear in the transcript, and the date of their filing, respectively, and the averments in each, are not shown except by the answer of the defendant, from which it appears that the plaintiff's action was originally brought in the state court on October 31, 1893, and that the action, as originally brought, was on a breach of contract to loan the plaintiff money, on the faith of which contract the plaintiff had purchased brick, which he was compelled to sell, on account of the defendant's breach, at a loss of $100, and that he had suffered damages for the loss of rents for the months of September and October, 1893, to the extent of $150 per month, and by reason thereof he was damaged by the defendant in the sum of $2,000; and on January 23, 1897, the plaintiff filed in the state court what purported to be his first amended original petition, in lieu of his original petition, and in the amended petition alleged the loss of $200 on the sale of the brick, and made a claim for $6,000 damages for loss of rents, and for $1,600 on account of increased cost of building houses on the premises referred to in the original petition. The second amended original petition, on which the case proceeded to trial, states the plaintiff's cause of action as follows:

'Plaintiff represents that heretofore, to wit, on or about the 9th day of June, 1893, the plaintiff and the defendant entered into a contract with each other whereby, for a proper and legal consideration, the defendant undertook and agreed to loan to plaintiff the sum of $8,000, for a term beginning on the 9th day of June, 1893, and ending on the 1st day of December, 1896, when said loan was to mature, and upon which sum so loaned, or agreed to be loaned, the plaintiff agreed and contracted to pay to defendant corporation ten per cent. per annum interest thereon, payable semiannually. Plaintiff further represents that he agreed to execute to the defendant, as proper and valuable security for the payment of the sum of money so contracted to be loaned to him by the defendant corporation, a deed of trust in the nature of a mortgage upon certain parcels of land, to wit: Lots 3, 4, 5, and 15 feet adjoining lost 5, out of block 4, in farm lot 24, according to the map of said city of Waco; also lots 10 and 11, in block 4, forming lot 21 of said city,-- all situated in the city of Waco, county of McLennan, and state of Texas. Plaintiff alleges that, pursuant to the contract and agreement, the plaintiff and his wife, Sarah Levinski, executed and delivered to the defendant their two certain promissory notes, dated June 9, 1893, one for the sum of $8,000, payable, as aforesaid, on the 1st day of December, 1896, and another note for $1,112.89, for the semiannual interest installments of four per cent. on the principal note, the principal note of $8,000 bearing six per cent. per annum interest; and thereafter the plaintiff and his wife did execute, acknowledge, and deliver to the defendant corporation a deed of trust in the nature of a mortgage upon the above-described property, dated the 28th of June, 1893, for the purpose of securing the aforesaid loan evidenced by the notes in accordance with the agreement, and in the form and manner required by the defendant. And plaintiff alleges that, although he performed his part of the contract as aforesaid by the plaintiff of his part of the contract, wholly failed and refused, and still fails and refuses, to advance and pay over to the plaintiff the sum of money for which the notes and deed of trust were executed and delivered, although the same has frequently been demanded of the defendant by the plaintiff. Plaintiff further shows and alleges that the purpose and object in borrowing said sum of money from the defendant corporation was well understood and known by the defendant corporation at and before the time when the contract was made, and that the purpose and object was to construct and erect dwelling houses upon the real property conveyed the the plaintiff and wife to the defendant corporation as security for the loan, by means of the deed of trust, and described therein as aforesaid, which houses were to be erected by the plaintiff, with the assent of the defendant corporation, for the purpose of renting the same for profit. And the plaintiff alleges that the greater part of the sum of money so agreed to be loaned to him by the defendant, to wit, about the sum of $5,000, was required by the defendant to be applied to the construction of the houses on said real property so as to enhance the security, and that the last-mentioned sum was only to be received by the plaintiff from the defendant as such improvements were constructed. And plaintiff alleges that the defendant required, and it was so agreed, that the plans and specifications for the houses should be submitted to, and approved by, the defendant; and that such plans and specification were in fact submitted to, and approved by, the defendant corporation before the execution and delivery of the notes and deed of trust as aforesaid. And plaintiff alleges that, according to the plans adopted by him and approved by the defendant, the houses were to be one-story frame cottages, with front porch, vestibule, parlor, two bedrooms, rear porch, dining room, kitchen, and back porch, bathroom, and closet, as shown by copy of floor plans marked 'Exhibit A,' and filed herewith and made a part of this petition. Plaintiff alleges that, had the defendant corporation complied with its contract in the premises, he could easily have rented the premises and the dwelling houses after they had been constructed and built upon the property, as it was understood between the plaintiff and the defendant corporation that they should be built, for the sum of $30 per month each, that being the reasonable rental value of each of the houses and premises, it being the understanding and agreement between the plaintiff and the defendant corporation in the contract that the plaintiff was to erect eight dwelling houses on the lots of land; and that, had the defendant corporation complied with its contract and engagement as aforesaid, plaintiff would have received for the houses a rental of $30 per month for each, amounting in the aggregate to the sum of $240 per month; and that the interest which the sum of money should bear, according to the agreement of the parties, would amount to $66.66 per month, or about that sum. And plaintiff alleges that his profits on the rentals, which profits were contemplated and understood by the parties plaintiff and defendant at the time the contract was entered into, would have amounted, after paying all expenses and interest, to sum of $175 per month from and after the 1st day of September, 1893, until the 1st day of November, 1896. For plaintiff shows to the court, and alleges, that at and before the time the defendant breached the contract as aforesaid it was informed by the plaintiff, and knew, that owing to the then stringency of the money market it would be impossible for the plaintiff to procure the money from any other source; that after the failure and refusal of the defendant corporation to comply with its contract in the premises the plaintiff made every effort in his power to procure the sum of money so agreed to be loaned by the defendant corporation to the plaintiff from other sources, but wholly failed, and was unable to borrow the sum of money, or any part thereof, until on or about the 14th day of August, 1896, when the plaintiff on said last-mentioned date was enabled to procure a loan upon the property for a portion of the amount of money agreed to be loaned to plaintiff by the defendant corporation, with which money the plaintiff has erected some houses upon the property, which houses have been paying him rent, as aforesaid, at the rate of $30 per month from and after November 1, 1896. And from said 9th day of June, 1893, to said November 1, 1896, the plaintiff was, by the wrongful act of the corporation defendant and its breach of contract, deprived of rents and profits accruing from the property as contemplated by the parties, and at the rate aforesaid. Wherefore, and by reason of the premises, and the failure of the defendant corporation to pay over to the plaintiff the sum of money and to carry out its contract as it had

...