Parker v. Mazur
| Decision Date | 12 December 1928 |
| Docket Number | (No. 8092.) |
| Citation | 13 S.W.2d 174 |
| Parties | PARKER et al. v. MAZUR. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; S. G. Taylor, Judge.
Suit by Max Mazur against T. T. Parker and another. From an interlocutory order overruling motion to dissolve temporary injunction, defendants appeal. Affirmed.
Leonard Brown, of San Antonio, for appellants.
Heilbron & Kilday and Harry L. Howard, all of San Antonio, for appellee.
Appellee sought and obtained temporary writs of injunction restraining T. T. Parker and A. B. Parker from further proceedings looking to a sale of certain lots of land in the city of San Antonio, under and by virtue of a certain deed of trust executed by appellee to T. T. Parker to secure the payment of five certain promissory notes each in the sum of $3,400, each payable ten years after date; said A. B. Parker being the trustee in said deed of trust. This appeal was taken from an interlocutory order overruling a motion to dissolve the temporary injunction.
It was alleged in the petition that the notes were payable in San Antonio, not at any specified place therein, and consequently were payable at the place of business of appellee, at 115 Military Plaza, that an installment of interest in the sum of $510 became due, and, although appellee had the money and was ready and willing to pay the same to appellants, neither of them called at said place of business for said interest, but declared the whole debt due by reason of default in payment of the interest, and were proceeding to sell the real estate for the said debt. Appellee alleged a tender of the full amount of the interest that was due, and prayed that appellants be compelled to accept the full amount of interest tendered into court, by appellee.
The facts show that appellants, when the first installment of interest on the notes became due and was not paid, proceeded, under authority of a provision in the deed of trust, to declare the whole debt, principal, and interest due, as evidenced by the five notes each for $3,400. The interest at 6 per cent. per annum on the aggregate sum of $17,000 was $1,020, and was payable semiannually; default being claimed in the payment of the semiannual interest amounting to $510, which sum was tendered appellants. Appellants made no demand for the interest when it became due, but proceeded to declare the whole debt due. Appellee was at all times during the time the notes were in existence engaged in business at 114 Military Plaza, city of San Antonio, and T. T. Parker has an office in the Kampmann building in said city. The property was advertised to be sold on July 3, 1928. Appellee swore that he was ready at all times after the interest became due to pay the same to T. T. Parker, but he did not request payment thereof. The interest was due and payable on March 28, 1928, and on May 2, 1928, the attorney for T. T. Parker notified appellee that he held the notes for collection which had been declared due by T. T. Parker. Appellee at once sought T. T. Parker and offered to pay the interest, but he refused it, and said: "No don't talk to me you talk to my lawyer, I want the full amount of the money." Ford and Kilday, agents of appellee, afterwards tendered the interest to appellant T. T. Parker, and he refused to accept it.
Under the Negotiable Instruments Act (Rev. St. 1925, art. 5937, § 73), it is upheld that "where no place of payment is specified and no address is given and the instrument is presented at the usual place of business or residence of the person to make payment," but that part of the act must be construed in connection with section 70, art. 5937, which provides: "Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part." There was no special place named in the notes for payment of principal or interest. O'Connor v. Kirby Inv. Co. (Tex. Civ. App.) 262 S. W. 554; Moore v. Knemeyer (Tex. Civ. App.) 271 S. W. 653....
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