Morgan v. Young, 4386.
| Decision Date | 21 July 1947 |
| Docket Number | No. 4386.,4386. |
| Citation | 203 S.W.2d 837 |
| Parties | MORGAN v. YOUNG. |
| Court | Texas Court of Appeals |
Appeal from District Court, Newton County; F. P. Adams, Judge.
Action by E. D. Morgan against Danis Young to recover amount allegedly due on a promissory note and to foreclose a deed of trust, wherein defendant filed a cross-action praying for recovery of damages for alleged breach of a contract. Judgment for defendant, and plaintiff appeals.
Affirmed on condition.
W. T. McNeil, of Beaumont, and Lewis Lanier, of Jasper, for appellant.
Faver & Barnes, of Jasper, for appellee.
E. D. Morgan, referred to hereinafter as plaintiff, brought this action against Danis Young, referred to hereinafter as defendant, to recover the sum owed on the promissory note of August 10, 1944, quoted below, and also to foreclose two liens securing this note, to wit, a deed of trust on defendant's farm in Newton county and a chattel mortgage on five per cent of defendant's 1944 and 1945 rice crops grown on that farm. By amendment, plaintiff limited his prayer for foreclosure to the deed of trust.
Defendant filed an answer, and also filed a cross action against plaintiff wherein he prayed recovery of $18,000 damages for plaintiff's breach of a contract he made with defendant on November 17, 1944, to lend defendant money with which to raise a rice crop on defendant's farm during 1945. Defendant's answer alleges that defendant was not liable to plaintiff on the note of August 10, 1944, because he made another note to plaintiff on November 17, 1944, which extended the time for paying sums due under the August 10 note; and further, in effect, that damages accruing to him under plaintiff's breach of contract had discharged his debt to plaintiff under the November 17 note.
Plaintiff filed a supplemental petition in reply to defendant's cross action. He denied that any note was made on November 17, 1944. He admitted that he made an agreement with defendant on that date to lend defendant money with which to produce a rice crop in 1945, but the contract alleged by him is materially different from that alleged by defendant. He plead that he was never obliged to pay over any money to defendant because defendant failed to perform two conditions on which plaintiff's duty to perform depended.
The cause was tried to a jury who assessed defendant's indebtedness on the August 10 note at $2,661.63. Other findings established plaintiff's breach of the contract, as defendant described that contract; and under still other findings the trial court fixed defendant's damages from this breach (net profit and certain expenses) at the sum of $7,020. From this the trial court deducted three items, namely, the amount of defendant's indebtedness, ($2,661.63), the value of rice produced by defendant in 1945 ($262.50), and the sum of $900 (which the jury found to be the sum defendant earned, or by the use of "reasonable diligence" could have earned "by engaging in a similar or different business or work after April 1, in 1945 until the end of that year"); and for the balance, to wit, $3,195.87, the trial court rendered judgment against plaintiff.
Plaintiff appealed from this judgment and has assigned 18 points of error for reversal. We make the following preliminary statement as a basis for our disposition of these points:
The evidence shows that plaintiff and defendant had been acquainted for several years prior to the transactions from which this litigation arose. Plaintiff was a carpenter and a roofing contractor who resided in Lake Charles, Louisiana; but his testimony shows that he knew, or claimed to know, a good deal about rice farming. Defendant was a rice farmer and had been for many years. He owned and resided upon a large tract of land in Newton county on which he grew rice in 1944 and 1945, and he apparently began to farm this land for rice as early as 1938 or 1939. Prior to that time he had been a rice farmer in Louisiana "south of Lake Charles." Plaintiff had loaned defendant money for use in defenant's Newton county farming operations over a period of time beginning in 1941 or 1942.
The course of dealing between the parties before 1944 was not shown in detail, but at various times during 1944, beginning on February 23, plaintiff loaned defendant sums of money totaling $7,309.82, with which to conduct his rice farming operations on the Newton county farm. On August 10, 1944, these advances amounted to $3,029.31, and on that date defendant executed and delivered to plaintiff the following promissory note for that sum, and also for other sums to be advanced to him by plaintiff to complete the 1944 crop:
"$10,000.00 No. ______ August 10, A.D. 1944
March 1, 1945 after date, for value received, I, Danis Young, promise to pay to the order of E. D. Morgan Ten Thousand ($10,000.00) * * * Dollars at Newton, Texas with 5% per cent interest per annum from______until paid.
And in the event default is made in the payment of this note at maturity, and it placed in the hands of an attorney for collection, or suit is brought on the same, or same is collected through the Probate Court, then—agree that an additional amount of ten per cent on the principal and interest of this note shall be added to the same as collection fees.
S/ Danis Young
Due March 1, 1945
Address___________."
Defendant also executed and delivered a deed of trust on his farm to secure the payment of this note.
Thereafter, on August 10 and subsequently down to and including November 17, 1944, plaintiff advanced to defendant on loan under this note nine separate items of funds totalling $4,274.70, and on December 20, 1944, charged defendant with an item of $5.81, for certain materials which he furnished defendant.
At some time not clearly shown by the evidence, defendant paid all of his indebtedness under this note except $2,661.63, the sum found to be owing by the jury; and on November 17, 1944 plaintiff and defendant made an agreement whereby the time for paying this sum was extended.
The agreement of November 17, 1944, was oral, excepting the chattel mortgage of that date. The object of the parties was to provide defendant with funds to raise a rice crop in 1945 and presumably to provide plaintiff with an investment; and the extension of time for paying the balance owed under the August 10 note was only a part of this agreement (as the jury in effect found under Issues 1 and 6). The record exhibits some uncertainty by each party regarding the terms of his promise; each proved a contract materially different in one or more respects from the contract he alleged.
There is much conflict regarding some terms of this agreement and defendant's performance thereunder; but many material facts pertaining to the agreement were undisputed.
It is agreed that plaintiff did promise defendant on November 17, 1944, to lend him money to be used in growing defendant's 1945 rice crop, and that, when defendant became entitled to receive the money, the funds were to be paid over to him as required.
The evidence raises the issue that the agreement of November 17, 1944 was a bilateral contract between plaintiff and defendant, wherein plaintiff promised to lend to defendant, and defendant promised to borrow from plaintiff the money defendant needed to raise his 1945 crop. We quote from defendant's testimony: We think this is the general sense of the testimony of both parties. Each testified in detail regarding assets available to defendant on November 17, 1944, for growing defendant's 1945 crop, and each contemplated that defendant would actually grow a crop in 1945, that he would eventually require additional funds for use in this enterprize, and that he would procure these funds from plaintiff. It was a necessary element of plaintiff's theory of the facts that defendant's assets of November 17, 1944, would have enabled defendant to comply with the conditions precedent to plaintiff's performance (as plaintiff described those conditions) if these assets "had been properly spent," but that afterward defendant would need and plaintiff would lend to defendant additional funds.
The time for payment of the balance due under the August 10 note was effectively extended to the time when advances made to defendant by plaintiff would come due, namely, when the 1945 crop was harvested. Plaintiff testified that defendant was to repay plaintiff "when he finished his 1945 crop," and defendant testified that repayment was to be made "when we got through harvesting the 1945 crop."
It is of direct significance here whether plaintiff or defendant procured this extension, and on this there is a conflict. Defendant's testimony shows that he had funds on hand, in money and salable seed rice, with which he could have paid and did offer to pay on that date, namely, November 17, 1944, the balance he owed plaintiff on the August 10 note, but that plaintiff persuaded him not to do so. The following quotation from defendant's testimony explains plaintiff's action: "Well, it was our agreement the day before, me and Mr. Morgan—I wanted to sell the rest of the seed rice and pay him in full for the note of 1944 and he said this—that it wasn't any use to sell the seed rice because he was figuring on helping me for the crop of 1945 and it would cost us too much to rebuy the seed rice." Plaintiff denied that defendant offered to repay the balance owed on the August 10 note and implies that the extension was procured by defendant.
This extension had the effect of keeping defendant in funds and thereby enabling him to do some of the work required in raising the 1945 crop; and this was at least one reason why the extension was made.
It is undisputed that defendant made and delivered to plaintiff on November 17, 1944, a chattel...
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