Morris v. Gaines

• Decision Date: 13 November 1891
• Citation: 17 S.W. 538
• Parties: MORRIS v. GAINES.
• Court: Texas Supreme Court

17 S.W. 538

MORRIS v. GAINES.

Supreme Court of Texas.

November 13, 1891.

Appeal from district court, Rockwall county; ANSON RAINEY, Judge.

Action by G. W. Morris against J. C. Gaines. Defendant recovered judgment against plaintiff on a plea in reconvention, and plaintiff appeals. Reversed.

Stroud & Henderson and T. L. Stanfield, for appellant. N. C. Edwards and Word & Charlton, for appellee.

GAINES, J.

The appellant brought this suit to recover of appellee a sum due upon a promissory note, and to enforce a vendor's lien upon a tract of land. The defendant (the appellee here) pleaded in reconvention, alleging that he had sold to the plaintiff by a parol contract a parcel of land in the town of Rockwall, for which the latter had agreed to pay the sum of $1,000, as follows: He was to pay off a certain promissory note given by the defendant to one Whitcomb for a part of the purchase money of the lot upon a previous sale by Whitcomb to defendant, and the balance of the $1,000 on the 1st day of November, 1889; that plaintiff had paid $420.50 in full discharge of the note for $340, but that the sum of $579.60 was still due him, and was unpaid. He tendered a deed to the plaintiff to the lot, and prayed for a judgment for the amount still due him, less the amount of the note sued on by plaintiff, and asked for a foreclosure of the vendor's lien. Upon the trial he obtained a judgment according to the prayer of his petition, and the plaintiff now appeals.

The plaintiff's cause of action was admitted upon the trial. The defendant proved by his own testimony the contract with the plaintiff as alleged in his plea in reconvention; and further testified that the plaintiff paid Whitcomb $140 upon the note, but declined to pay the balance, on account of some difficulty about the title, until the lot should be sold and bought in under Whitcomb's lien, and proposed that this should be done in order to perfect the title; that he consented to this arrangement, and accepted service of a citation in a suit brought by Whitcomb to enforce his lien; that judgment was rendered, and the lot sold, and bought in by the plaintiff for the sum of $280.50, — an amount sufficient to discharge the balance of the note. He also testified that after his contract with the plaintiff he put him in possession of the lot, and that he had ever since continued to hold possession of the property. The plaintiff also testified in the case, and in effect admitted the sale of the lot to him by the defendant upon the terms alleged. He, however, denied having been a party to the agreement for the foreclosure of Whitcomb's lien by the judgment of the court, and asserted, in effect, that before the foreclosure sale he had determined not to carry out the contract with the defendant, and that he bought the property at that sale on his own account. The plaintiff objected to the testimony of the defendant in reference to his promise to pay the note held by Whitcomb upon the ground that, "if said agreement was ever made, it was a promise to pay the debt of another, and was not evidenced by any memorandum or contract in writing, signed by the plaintiff, Morris, the party to be charged." The court correctly overruled the objection, and admitted the evidence. The consideration for the lot was $1,000, a part of which the plaintiff promised to pay Whitcomb in satisfaction of a debt due the latter by defendant. This, it is true, was a promise to pay the defendant's debt, but it was also a promise to pay in part the plaintiff's own debt. That such a promise is not within the statute of frauds has been decided by the court. Spann v. Cochran, 63 Tex. 240.

But the case presents a more serious question, growing out of the statute of frauds. The court charged the jury, in effect, to find a verdict for the defendant if the defendant by a verbal agreement sold the plaintiff the lot, and the plaintiff verbally promised to pay him $1,000 in...