Lindsay v. Price
| Decision Date | 01 January 1870 |
| Citation | 33 Tex. 280 |
| Parties | L. LINDSAY v. L. F. PRICE. |
| Court | Texas Supreme Court |
1. The payee of a note for about $1,000 on W., put it in the hands of attorneys for collection, and afterwards gave to P. an order directing the attorneys to pay to him $500, “out of the money collected or to be collected on the note.” The attorneys accepted the order, “to be paid out of the first money collected on the note.” Their client, the payee, afterwards compromised with W., and instructed the attorneys to cancel the note, so they never collected anything on it. P. sued the attorneys on the order and their acceptance. Held, that the order cannot be regarded as a bill of exchange, nor as an assignment pro tanto of the note. It was a mere mandate, revokable by the maker of it at any time before it was executed, and without the consent of the attorneys, notwithstanding their conditional acceptance of it; and when revoked by the maker, the attorneys could not, either as trustees or otherwise, be held liable to P., the holder of the order. Kinney v. Lee, 10 Tex. 135, cited and approved.
2. Notes and bills of exchange cannot be assigned in parts.
3. An appeal bond need not be signed by the appellant. All the obligations stipulated in the bond are incumbent on him, independent of the bond. It is, therefore, no objection to an appeal bond that the appellant's name was signed to it by another person, who assumed to sign it under a defective power of attorney.
APPEAL from Fayette. Tried below before the Hon. I. B. McFarland.
The opinion of the court states such of the facts as are deemed material.
H. Feichmuller, for the appellant.
McLemore & Hume, for the appellee.
Chandler & Carleton, also for the appellee moved for a rehearing, and that the judgment of this court be so modified as to remand the case for a new trial; but no action appears to have been taken on their motions.
This action was brought to recover of the appellant, surviving partner of the firm of Lindsay & Shropshire, on what is assumed to be a bill of exchange. The instrument reads as follows:
“NOVEMBER 7, 1865.
Messrs. Lindsay & Shropshire will pay to L. F. Price the sum of ($500) five hundred dollars out of the money collected, or to be collected, on the note of G. M. T. Webb, which note was placed in their hands for collection.
+------------------------+
¦(Signed)¦HARRIET COOK.” ¦
+------------------------+
Lindsay & Shropshire accepted the order in words following:
“Accepted to be paid out of the first money collected on note made by G. M. T. Webb, G. T. Haswell, W. W. Wade and N. T. Ware.
+-------------------------------+
¦(Signed)¦LINDSAY & SHROPSHIRE.”¦
+-------------------------------+
The amount of the Webb note was $971.79, and it is claimed that the order of Mrs. Cook operated as an assignment of $500 of the amount to Price, and that Lindsay & Shropshire held the note to this extent, in trust for the use of Price. After the execution, delivery and conditional acceptance of the order, Mrs. Cook compromised her demand against Webb, and by letter, directed Lindsay & Shropshire to cancel the note, on receipt of attorney's commission. The mandate contained in the order had not been executed. No money had come to the hands of Lindsay & Shropshire, and Mrs. Cook had a perfect right in law to...
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Brown v. Melloon
...105, 29 N.W. 679; and appeal bonds,--Webster v. Wailes, 35 Fla. 267, 17 So. 571; Harrison v. Bank, 26 Ky. 375, 3 J.J. Marsh. 375; Lindsay v. Price, 33 Tex. 280; Johnson Johnson, 31 Ohio St. 131. The bond in this case was not delivered contrary to instructions and, so far as this record disc......
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Brown v. Melloon
...Mich. 105, 29 N. W. 679; appeal bonds, Webster v. Wailes, 35 Fla. 267, 17 South. 571; Harrison v. Bank, 3 J. J. Marsh. (Ky.) 375; Lindsay v. Price, 33 Tex. 280;Johnson v. Johnson, 31 Ohio St. 131. The bond in this case was not delivered contrary to instructions; and, so far as this record d......
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Tolbert v. Standard Acc. Ins. Co., 12055.
...involved, our authorities seem to have so held. Shade v. Anderson, Tex.Civ.App., 36 S.W.2d 1041; Martin v. Roberts, 57 Tex. 564; Lindsay v. Price, 33 Tex. 280; San Roman v. Watson, 54 Tex. 254; Mitchell v. Hydraulic Building Stone Company et al., 61 Tex.Civ.App. 131, 129 S.W. 148; Marsh et ......
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Houston & T. C. R. Co. v. Lockhart
...numerous decisions that it is not necessary in an appeal for the appellant to sign the appeal bond. Shelton v. Wade, 4 Tex. 148; Lindsay v. Price, 33 Tex. 280; McKellar v. Peck, 39 Tex. 381; San Roman v. Watson, 54 Tex. 254; Weis v. Chipman, 3 Tex. Civ. App. 106, 22 S. W. The third ground—t......