Littlejohn v. Johnson
| Citation | 332 S.W.2d 439 |
| Decision Date | 21 January 1960 |
| Docket Number | No. 3705,3705 |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
| Parties | W. L. LITTLEJOHN, Appellant, v Emma Cone JOHNSON et al., Appellees. |
Mrs. W. R. Littlejohn, Beeville, for appellant.
Lawrence Jack Moore, Houston, for appellee.
This is an appeal from a summary judgment that plaintiff take nothing. Parties will be referred to as in the Trial Court. Heretofore plaintiff, L. W. Littlejohn, with Honorable Howell Ward as his principal attorney, instituted suit in Freestone County for title and possession of certain land. There were several defendants, including Texaco Inc. Judgment in such case was rendered on 23 April 1959 awarding Plaintiff Littlejohn title and possession to the land, and in addition awarding him a money judgment for $4,907.15 against Texaco Inc. This judgment was not appealed. On 5 May 1959 the attorney for Texaco (whose office is at Houston) telephoned and wrote Attorney Ward, (whose office is in Corpus Christi), that he was mailing him a check for $4,917.65 (the amount of the judgment plus a few days' interest), an a release of judgment to be signed by Mr. Littlejohn. On 5 May 1959 Attorney Ward wrote Plaintiff Littlejohn, (whose office and residence are in Beeville), that Texaco was sending a check to pay the judgment and a release of judgment for execution, and requested Mr. Littlejohn to come in. On 6 May 1959 Plaintiff Littlejohn wrote Attorney Ward that he received his letter and would be in his office (in Corpus Christi) on 8 May 1959. Plaintiff Littlejohn came to Attorney Ward's office on 8 May 1959; was presented with the release; signed same; and was then presented Texaco Inc.'s check for $4,917.65. Such check was made payable to 'L. W. Littlejohn and Howell Ward', and stated, 'In payment of all sums recovered by L. W. Littlejohn from the Texas Company in final judgment entered in the case of Littlejohn v. Johnson et al, No. 5219-B, 87th District Court, Freestone County, Texas.' Such check bore on the back thereof, when handed to Plaintiff Littlejohn, the following endorsement: 'Pay to order of L. W. Littlejohn, /s/ Howell Ward.'
Plaintiff Littlejohn then returned the check to Attorney Ward's partner (Attorney Ward being out of the room), and instructed that the release of judgment was not to be delivered. Plaintiff Littlejohn then returned to Beeville, and on 9 May 1959 (the next day) wrote to Attorney Ward that he refused to accept the check because it was payable to Attorney Ward as well as himself; that he was offended by this fact; and instructed Attorney Ward to return the check to Texaco Inc., and request that they issue a new check payable only to L. W. Littlejohn, and with 6% interest to be added to the new check to the date of issuance. On 8 May 1959 Attorney Ward mailed the Texaco Inc. check to Mr. Littlejohn, but Mr. Littlejohn had not received it at the time he wrote the letter of 9 May 1959 to Attorney Ward. At some point Attorney Ward sent the signed release of judgment to Texaco Inc. On 11 May 1959 Plaintiff Littlejohn returned the check to Attorney Ward, stating that he refused to accept it until the conditions met in his letter of 9 May 1959 were accomplished, (viz. issuance of a new check payable to L. W. Littlejohn only). On 17 June 1959 Attorney Ward returned the check by mail to Plaintiff Littlejohn; on 19 June 1959 Mr. Littlejohn mailed the check to Texaco, and demanded that they reissue the check payable to him only, and in an amount to include interest at 6% to the date of issuance. Texaco thereafter filed the release of judgment for record in Freestone County and sent the check herein involved to the District Clerk of Freestone County with instructions to deliver it to Mr. Littlejohn on demand. On 20 July 1959 Plaintiff Littlejohn filed this cause for declaratory judgment and payment of the judgment in the prior proceeding. Defendant Texaco filed motion for summary judgment. Both sides filed various other pleadings and affidavits. It is our view that the material facts are without dispute, and are as related herein.
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