Otto v. Halff

• Decision Date: 04 December 1895
• Citation: 32 S.W. 1052
• Parties: OTTO et al. v. HALFF et al.
• Court: Texas Court of Appeals

32 S.W. 1052

OTTO et al. v. HALFF et al.

Court of Civil Appeals of Texas.

December 4, 1895.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by Louis Otto and others against M. Halff & Bro. to cancel a note and to restrain the disposition of certain collaterals thereto. Defendants had judgment, and plaintiffs appealed. After the appeal was dismissed the case was resubmitted. Affirmed.

This cause was dismissed by us for want of a final judgment. (See supra.) Since then the judgment has been made final nunc pro tunc, and the cause resubmitted at the instance of counsel for both parties. The following are the conclusions of fact found by the trial judge:

"First. That on December 18, 1893, L. Otto was indebted to the defendants, M. Halff & Bro., on an open account for merchandise sold him, in the sum of twenty-six hundred and thirty-five and 11/100 ($2,635.11) dollars, due in January, 1894, and February, 1894. That on said date defendants agreed with J. A. Otto, agent and representative of said L. Otto, on the following terms of settlement. Two hundred and ninety-seven and 41/100 ($297.41) dollars in cash, and a note for twenty-three hundred and thirty-seven and 70/100 ($2,337.70) dollars, due November 1, 1894, bearing interest from date at ten (10%) per cent., and secured by four notes of M. & R. J. Ellis, payable to L. Otto, for the sum of five hundred and thirteen and 40/100 ($513.40) dollars each. Second. That the plaintiff L. Otto paid the said sum of $297.41 in cash, and that defendants wrote the note provided for, but by a mistake made the interest payable from maturity. Third. That by a subsequent agreement the maturity of said note was extended to January 1, 1895. Fourth. That when said note matured defendants ascertained the mistake in said note, reading `interest payable from maturity' instead of `interest from date,' and drew a line through the word `maturity' and wrote the word `date.' That defendants were guilty of no fraud in so doing, that their conduct was open, and that at the time they believed they had the legal right to so change the note as to make it express the contract actually made between them and plaintiffs. Fifth. That the following sums were paid on said collateral notes and credited to the note of said L. & J. A. Otto: January 9, 1894, $234.10; October 24, 1894, $204.80. Sixth. That J. A. Otto was the agent of L. Otto, and was the general agent in the management of the business of said L. Otto."

We adopt the above conclusions as supported by the testimony, with the following modification, viz. that the testimony introduced on behalf of appellants shows that the collaterals were offered and given to appellees in order to secure the account and its extension, and that it is not strictly accurate to state, as the conclusions imply, that they were given to secure the note. Appellants contend, among other things, that the conclusions of fact filed by the trial judge should not be given any effect, because they were filed without having been requested by either party. There is no force in this point, as it does not affirmatively appear by the record that such was the case; the only suggestion of it being in a motion to strike out the conclusions, which was overruled, perhaps for the reason that a request had been made. We might well presume, from the filing of the conclusions, that a request therefor had been made. Moreover, the judgment in favor of appellees would require us to consider that the court made the very conclusions that were filed, for by no other findings could that judgment have been reached.

McNeal, Harwood & Walsh, for appellants. Lewy & Sehorn, for appellees.

JAMES, C. J. (after stating the facts).

We need not deal with authorities in acknowledging the proposition that an alteration of a note in a material particular by the holder of it avoids the note, and no recovery can be had thereon. Here it is not denied that the payee, when he forwarded the note for collection, upon its maturity struck out the word "maturity" and substituted the word "date," thereby making it read to bear interest from date, which, of course, was a material alteration. The effect of the change, so far as it is expressed above, is not a matter upon which the attorneys in the case differ, but the question at issue directs itself to the effect of the alteration upon the original debt. Louis Otto and J. Otto, the makers of the note, brought this suit in equity for the purpose of having the note canceled on account of the alteration, of enjoining M. Halff & Bro. from disposing of the collaterals, and of having the same returned to plaintiffs. The defendants, by their affirmative pleading, alleged the original account against plaintiff Louis Otto, less certain credits; that plaintiffs, on December 18, 1893, requested the time for paying the account to be extended, and obtained the extension, agreeing to give a note for the amount, with interest at 10 per cent. per annum from date, and give the collaterals; that the note made was on a printed form which contained the word "maturity" as the time from which...