Parks v. Lubbock

• Decision Date: 02 March 1899
• Citation: 50 S.W. 466
• Parties: PARKS v. LUBBOCK.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

50 S.W. 466

PARKS v. LUBBOCK.¹

Court of Civil Appeals of Texas.

March 2, 1899.

Appeal from district court, Anderson county; W. H. Gill, Judge.

Action by John B. Lubbock against R. C. Parks, administrator. From a judgment for plaintiff, defendant appeals. Affirmed.

Thos. B. Greenwood & Son, for appellant. A. W. Gregg and B. H. Gardner, for appellee.

WILLIAMS, J.

This action was brought originally against Mary Fields individually and as independent executrix of the will of her deceased husband, Henry Fields, to recover the amount due upon a note and attached interest coupons, executed by them to the Jarvis-Conklin Mortgage Trust Company on the 1st day of November, 1889, and to foreclose a deed of trust of land executed by them to secure the note. Pending the suit, the executrix married R. C. Parks, and afterwards died, when Parks became the administrator of Henry Fields' estate. A claim was duly presented to him for the amount of the note, principal and interest, and not including attorney's fee, but he refused to allow it except for the principal, less a payment. He was made party to the suit as administrator, and it was prosecuted to judgment, from which this appeal is taken. The pleadings raised the questions decided. The note was as follows: "Five years after date, for value received, we promise to pay to the order of the Jarvis-Conklin Mortgage Trust Co., at its office in Kansas City, Mo., eight hundred and twenty-five dollars, lawful money of the United States, with interest thereon at the rate of six per cent. per annum, payable semiannually on the first days of May and November in each year, according to the tenor and effect of the interest notes of even date herewith, and hereto attached. This note is to draw interest from date at the rate of twelve per cent. per annum if either principal or interest remain unpaid ten days after due. At the option of the legal holder, after any of said interest notes remain due and unpaid ten days, the whole of the principal and interest may be declared immediately due and payable. This note is given for the actual loan of the above amount, and is secured by a trust deed of even date herewith, which is a first lien on the property herein described. Dated at Kansas City, Mo., November first, 1889. Henry Fields. Mary Fields." Attached to the note are 10 interest coupons for $24.75 each. The note is indorsed on its back in blank, and without date, to "Jno. B. Lubbock and Wm. B. Lubbock," by the "Jarvis-Conklin Mortgage Trust Co." No payment had been made upon it except the first coupon. It was given for money loaned to Fields by the payee, the sum actually received by Fields being $693.12. The difference between this sum and the principal named in the note is claimed by appellee to have been consumed in a commission paid to agents for securing the loan, but the view...