Odom v. Pinkston
| Decision Date | 03 April 1946 |
| Docket Number | No. 9553.,9553. |
| Citation | 193 S.W.2d 888 |
| Parties | ODOM v. PINKSTON. |
| Court | Texas Court of Appeals |
Appeal from County Court at Law No. 2, Dallas County; Owen George, Judge.
Action by Jack Pinkston, doing business as Transportation Insurance Agency, for recovery upon a promissory note or written instrument. From a default judgment for plaintiff, defendant appeals by writ of error.
Judgment reformed and affirmed after filing of remittitur by plaintiff.
Chancy & Davenport, by F. B. Davenport, all of Dallas, for appellant.
Jack Pinkston, of Dallas, appearing for himself.
The parties will be designated as in the trial court.
Plaintiff, Jack Pinkston dba Transportation Insurance Agency, sued defendant, L. A. Odom, upon "a promissory note and/or written instrument," and on June 25, 1945, recovered a default judgment in the sum of $700.18, with 10% interest per annum thereon. On November 1, 1945, defendant filed this appeal by writ of error from said judgment.
The note sued upon was offered in evidence, and reads as follows:
with interest from date of maturity at the rate of ten per cent per annum. The makers, sureties, guarantors and endorsers of this note, and all other parties hereto, severally waive demand, presentment, notice of dishonor, diligence in collecting, grace, notice and protest, and agree to all extensions and partial payments, before or after maturity, without prejudice to the holder; neither will the renewal hereof extinguish any of the liabilities of the parties. The holder of this note in the event of default on the part of the maker in the payment of any of said installments, shall have the right to declare all the remaining amount unpaid, due and payable immediately. If it should become necessary to cancel the insurance, the premiums on which are covered hereby, because of the assured's failure to pay the installments shown herein, such cancellation shall be on the customary short rate basis, and if this note is not paid at maturity and is placed in the hands of an attorney for collection or if it is collected through a bankrupt court, a probate court, or any other court, then there shall be added hereto the holders collection expenses plus reasonable attorneys fees.
"P.O.Address Stanton, Texas
"Policy No. N MC-7849-2559
L. A. Odom
(Name of Assured)"
Defendant contends that the court erred in rendering judgment upon this instrument, which was offered in evidence upon two grounds:
1. Because the instrument showed $111.50 due on December 3, 1940, the date of the instrument, and $36 due on the 3rd day of successive months, all installments totaling $471.50; whereas the petition alleged and described the note as being due on August 7, 1941, in the sum of $495.31.
2. Because plaintiff sued on an executory contract and made no proof that he had performed the obligation disclosed in the contract.
Neither of these contentions is sustained.
In substance plaintiff alleged that he was suing upon "a promissory note and/or written instrument," executed and delivered by defendant to him on December 3, 1940, whereby, for value received, defendant agreed to pay plaintiff the amount of the note, at his office in Dallas, Texas, with interest thereon at the rate of 10% per annum from date of maturity, and upon which defendant is indebted to plaintiff in the sum of $495.31, principal and interest due to date of the suit, or to May 28, 1945; and that said note had been in default since August 7, 1941; that defendant had refused upon repeated demands to pay said indebtedness, to plaintiff's damage in the sum of $495.31.
Plaintiff further alleged that the note provided that if collected through court, "then there shall be added hereto the holder's collection expenses plus reasonable attorney's fees"; that plaintiff is the legal owner and holder of the note and has expended in excess of $100 expenses in attempting to collect this debt, to his damage in the sum of $100; and that plaintiff has employed counsel in attempting to collect the note and has expended therefor reasonable fees in the sum of $100, to his damage in the sum of $100.
Plaintiff prayed for judgment in the sum of $695.31 in the premises, plus 10% interest thereon from May 28, 1945, and for costs and all other relief to which he may be justly entitled. Plaintiff swore to his petition, stating in his oath "that the foregoing petition and every statement and allegation thereof is true and correct."
We think the petition sufficiently stated a cause of action upon a note and/or written instrument for $495.31, as principal and interest due thereon to the date of filing of the suit, and was sufficient to support the default judgment for that amount. This under the rule relating to a default judgment that:
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