Pope v. Hennessey, 8618.

• Decision Date: 06 May 1931
• Docket Number: No. 8618.,8618.
• Citation: 38 S.W.2d 834
• Parties: POPE v. HENNESSEY.
• Court: Texas Court of Appeals

38 S.W.2d 834

POPE v. HENNESSEY.

No. 8618.

Court of Civil Appeals of Texas. San Antonio.

May 6, 1931.

Appeal from District Court, Nueces County; Birge Holt, Judge.

Action by M. F. Hennessey against W. E. Pope. From the judgment, defendant appeals.

Reversed and remanded.

H. S. Bonham and H. A. Carr, both of Corpus Christi, for appellant.

F. J. Onzon, of Corpus Christi, for appellee.

FLY, C. J.

Appellee sought a recovery on a promissory note for $300 executed by appellant to appellee. A jury was demanded, and the cause submitted to them on three issues, as follows:

"Special Issue No. 1:

"Do you find from a preponderance of the evidence that the note sued on was executed under protest by defendant as to its being for the correct amount of his indebtedness to plaintiff? Answer yes or no.

"Special Issue No. 2:

"Do you find from a preponderance of the evidence that W. E. Pope should pay rent to M. F. Hennessey for said premises for the months of November and December, 1927? Answer yes or no.

"Special Issue No. 3:

"What offset, if any, do you find from a preponderance of evidence, should be credited against rents due by W. E. Pope to M. F. Hennessey? Answer in dollars and cents, or nothing, according to your finding."

The jury retired and after considering their answers for twenty-four hours stated to the court that they could not agree, and then upon motion of appellee the court instructed the jury to return a verdict in favor of appellee for the amount of the note, interest, and attorney's fees.

Appellant swore that the account for which the note was given was nearly barred by limitation, and that he signed the note upon an agreement that he should have credit on the note for amounts which he claimed to have paid, and for which he claimed to have receipts. He claimed that, at the time he signed the note for $300, he had a statement from appellee showing that the latter claimed only $250, and that, after an allowance of $50 was made for improvements made by appellant, and a payment of $50, the whole amount owed by him was $150. Some of the statements of appellant were contradicted, but, whether contradicted or not, his testimony raised an issue, which the judge submitted to the jury, but afterwards withdrew from them and rendered judgment for appellee.

It is contended that the evidence of appellant as to the adjustment of the matters of dispute between him and appellee should not have been admitted to the jury, and that it created no defense to the note, and therefore the court was justified in withdrawing the case from the jury under the special issues, and instructing them to return a verdict. It is contended that the verbal understanding testified to by appellant tended to vary the terms of the written instrument, and that it could not be considered. The evidence went in without objection and was submitted to the jury without objection, and, when the jury failed to agree, was taken from them by the court. The action of the court, even though the testimony had been illegal, was unprecedented and without sanction of law.

However, the testimony was properly admitted, and, if the jury could not agree on a verdict, they should have been discharged and the cause...