Payne v. Miller
Decision Date | 10 July 1941 |
Docket Number | No. 11226.,11226. |
Citation | 153 S.W.2d 514 |
Parties | PAYNE v. MILLER. |
Court | Texas Court of Appeals |
Appeal from Harris County Court; William M. Holland, Judge.
Suit on promissory note by Doris Miller against Will N. Payne. From a judgment for plaintiff, the defendant appeals.
Judgment reversed and rendered.
Ward, Kimbrough & Kirkman, of Corpus Christi, for appellant.
Russel A. Bonham and Mary Nan Bonham, both of Houston, for appellee.
This was a suit in the usual form to recover on a promissory note brought by appellee against appellant. Appellee and appellant will be designated as they were in the trial court, plaintiff and defendant, respectively. The note was dated November 14, 1934, and was for the principal sum of $671.46. It was executed by defendant and made payable to the order of plaintiff.
Defendant pled by way of defense that the note was obtained from him by plaintiff by duress; that it was obtained from him by plaintiff in fraud of the Land Bank commission; also, that plaintiff had made such representations and warranties to the Land Bank Commissioner, in connection with a loan obtained by defendant from said Commissioner, that she, plaintiff, was estopped to enforce the note against defendant by reason of said warranties and representations made to the Land Bank Commissioner; also, that the note was executed in violation of the purpose, spirit and policy of the Act of Congress creating the Federal Farm Mortgage Corporation; also, that the note is without consideration. The facts upon which defendant based and supported said defense pleas he pled at length.
The case was tried without the aid of a jury, and judgment was rendered for plaintiff. Defendant first requested, and then withdrew his request, for findings of fact and conclusions of law. The question on appeal therefore is whether or not, viewed in their most favorable light, the facts proved sustain the judgment.
The facts are: In 1931, defendant and wife gave their note, payable to plaintiff, for $2,300 secured by a mechanic's and materialman's lien on a farm in Hidalgo County, due two years after date. This note was inferior to a prior $600 vendor's lien note. Both plaintiff's note for $2,300, and the prior vendor's lien note for $600, became past due in 1933, as did also taxes against the farm property. And then, at a time when plaintiff was visiting defendant and his wife, she told defendant she was in need of her past-due money. Defendant thereupon suggested that he might be able to get a loan from the Federal Land Bank and told how much he could get on the farm property, and said amount was less than enough to pay off the first lien note, and plaintiff's note in the sum of $2,300; plaintiff declined to accept the amount proffered her for her note which was $1,926.54 in bonds (payment of which was guaranteed by the Government under the Emergency Farm Mortgage Act of 1933, 48 Stat. 41). Defendant thereupon suggested to plaintiff the plan which was followed, and which he now complains of as being illegal, namely, that if she (plaintiff) would transfer her note and lien to the Land Bank Commissioner, that he, defendant, would pay plaintiff, as he was able, the difference between the bonds she would receive (in the amount of $1,926.54), and the total amount of her note, in the sum of $2,300. Plaintiff replied to defendant that she would take a secured note for the said difference. Defendant testified in this connection:
The full amount of the indebtedness against the property was $3,200. The Commissioner approved the loan only for $2,800, and under the loan of $2,800, which was to be obtained from the Commissioner, plaintiff was entitled to get bonds in the amount of $1,926.54.
By letter of November 14, 1934, plaintiff through her then attorney wrote the following letter to defendant which is self-explanatory:
Plaintiff signed the following under date of November 14, 1934:
Plaintiff executed a transfer and assignment under date of February 25, 1935, which reads, so far as here material, as follows:
The assignment just referred to shows that plaintiff was acting under, and receiving the benefits of, the Emergency Farm Mortgage Act. The very law under which she received and accepted the bonds compelled her to cancel the remainder of the $2,300 indebtedness. McCrory v. Smeltzer, 132 Tex. 383, 124 S.W.2d 336. Under the foregoing instruments which we have copied, plaintiff was charged with the knowledge that in taking the note sued on she was taking a note to cover a portion of the debt which she bound herself to cancel and which, like a gambling debt, cannot be enforced in a court of law. We are constrained to hold that the judgment of the trial court must be reversed and here rendered in favor of defendants. It will be so ordered. Justice GRAVES dissents.
Reversed and rendered.
This dissent stems from what are regarded as the controlling facts developed at the trial, which may be thus, in material substance, stated:
The note sued upon here is dated November 14, 1934; more than three months after this date, the appellee, by instrument dated February 25, 1935, assigned to the Federal Land Bank the unpaid balance of $1,926.54, on an original mechanic's lien recorded November 26, 1934. This assignment is partly typed and partly printed, and contains the following provisions:
The testimony of the appellee is, in part:
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Boone v. Pierce, 2832.
...383, 124 S.W.2d 336; Briley v. Oldham, 132 Tex. 550, 124 S.W.2d 854; Wheeler v. Willis, Tex.Civ.App., 138 S.W. 2d 142; Payne v. Miller, Tex.Civ.App., 153 S.W.2d 514, er. dis.; Ellwood v. Lancaster, Tex.Civ.App., 157 S.W.2d Accordingly, both of appellants' points of error are overruled and t......
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Ellwood v. Lancaster, 5367.
...in the following cases: McCrory et al. v. Smeltzer et ux., supra; Wheeler v. Willis et ux., Tex.Civ.App., 138 S.W.2d 142; Payne v. Miller, Tex.Civ.App., 153 S.W.2d 514; Briley v. Oldham, 132 Tex. 550, 124 S.W.2d 854; Oldham v. Briley, Tex.Civ. App., 118 S.W.2d The judgment is affirmed. ...
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Hayden v. Lowe, 15241
...cannot secretly take a new note for the unpaid portion of the debt. McCrory v. Smeltzer, 132 Tex. 383, 124 S.W.2d 336; Payne v. Miller, Tex.Civ.App., 153 S.W.2d 514; Boone v. Pierce, Tex.Civ.App., 218 S.W.2d 347, writ Appellants rely upon a holding in the case of Briley v. Oldham, 132 Tex. ......