Loving v. Dixon

• Court: Texas Supreme Court
• Citation: Loving v. Dixon, 56 Tex. 75 (Tex. 1881)
• Decision Date: 29 November 1881
• Docket Number: Case No. 2889.
• Parties: J. C. LOVING v. WM. DIXON.

56 Tex. 75

J. C. LOVING

v.WM. DIXON.

Case No. 2889.

Supreme Court of Texas.

Nov. 29, 1881.

ERROR from Cooke. Tried below before the Hon. J. A. Carroll, special judge.

Suit brought by defendant in error as plaintiff below, against L. R. Dyer and J. C. Loving, upon a joint obligation of the defendants to pay to D. S. Hagler & Co. $5,000, which could be discharged in beef steers at twenty dollars, and cows at twelve dollars per head, to be delivered at Red River Station on or before September 1, 1871, upon which it was acknowledged that $3,000 had been paid, leaving remainder unpaid; and the cattle not having been delivered, a judgment in money was sought.

The note had been assigned to the plaintiff, who, at the time of bringing suit, sued out an attachment against the defendants, which was levied on three hundred and seventy-five head of cattle, valued at $2,500.

The defendant replevied the cattle by special bail bond in a few days after the levy.

The answer of the defendant Loving set up a special plea that he signed his name to the note as surety for the defendant Dyer, with the understanding between himself, Dyer, and Hagler & Co., to whom the note was given, that one David Terrell was also to sign the note as surety for Dyer; and that it was further understood and agreed between all of the parties, that if the signature of Terrell was not procured as a co-surety, the note was to be of no force or effect.

Defendant Loving also pleaded in reconvention damages against the plaintiff for wrongfully suing out the attachment; that it was done maliciously and without probable cause, with intent to injure, vex and harass the defendant, and that the plaintiff's affidavit that defendant was about to remove his property out of the state, and he would probably lose his debt, was false and unfounded. The damages alleged consisted of loss of time, trouble and expense in giving bond to replevy, and attorney's fees and loss of horses and mules, amounting in all to $3,000.

During the progress of the suit a motion was made to transfer the cause by change of venue from Montague to Cooke county, which was allowed; but before being transferred, the record was destroyed in the burning of the county records of Montague county, and the pleadings and proceedings were afterward substituted in the district court of Cooke county, to which this cause was transferred.

J. M. Lindsay, one of the counsel for the defendants, having been elected judge of the district embracing Cook county, an agreement was made between the counsel for the parties for the appointment of J. A. Carroll, an attorney of the court, special judge to sit in the case, who proceeded on the 10th of July, 1874, to try the cause, and rendered judgment on the verdict of a jury for the plaintiff, against Dyer as principal and Loving as surety. It was shown on the trial that the plaintiff had not completed the payment of the consideration he was to pay for the note.

McCall & McCall, for plaintiff in error.

Walton, Green & Hill, for defendant in error.

WATTS, J. COM. APP.

Loving claimed that he signed the note with the understanding and upon the agreement that he was not bound thereby, unless D. P. Terrell would sign the same. This was one of the contested issues in the court below, and much of the evidence found in the record was addressed to it. In the bill of sale from Hagler & Co. to Dyer, the latter is required to obtain Terrell's signature to the note, and it is provided that, if Terrell should fail or refuse to sign the note, the bill of sale was to be null and void. It is clearly shown that Loving was in fact surety for Dyer. On the trial there was evidence introduced, without objection, tending to show that subsequent to the execution...