Prince v. Thompson

• Decision Date: 01 January 1858
• Citation: 21 Tex. 480
• Parties: EDWARD PRINCE v. ALLEN THOMPSON.
• Court: Texas Supreme Court

21 Tex. 480

EDWARD PRINCE

v.ALLEN THOMPSON.

Supreme Court of Texas.

1858.

A memorandum appended to a note, in the petition, was alleged to be an agreement, made at the time of the execution of the note by the maker, and judgment by default was rendered according to the tenor of said memorandum, there being no statement of facts or bill of exceptions, the question whether or not the cause of action was liquidated and proved by an instrument in writing, was presumed to have been decided correctly by the court, being properly pleaded. 18 Tex. 275.

And whether the cause of action, as set out in the petition, be regarded as one instrument or as two, made at the same time, about the same matter, by the same parties, and therefore being parts of the same transaction, the judgment by default must be sustained.

Appeal from Smith. Tried below before Hon. R. A. Reeves.

Suit upon a note, under the signature of which was a memorandum in the following words: “If not punctually paid when due to draw ten per cent. interest,” which is alleged to be an agreement made at the time of the execution of the note. The appellant failing to answer a judgment by default was rendered for the amount of the note, with ten per cent. interest.

Motion for a new trial overruled. There is no statement of facts or bill of exceptions. The judgment for interest at ten per cent. was assigned as error.

Tignal W. Jones, for appellant.

Donley & Anderson, for appellee.

ROBERTS, J.

Had the petition presented the whole cause of action as a note, executed by Prince, though not signed at the bottom of but at a place in the instrument preceding one and the last sentence thereof, the case would have clearly come under the rule laid down in Fulshear v. Randon, 18 Tex. 275, and the judgment by default would have been good.

It is stated first that Prince executed a note, which is set out, and it is then added, “to which note is appended the following agreement, made at the time of the execution of said note: “If not punctually paid, when due to draw ten per cent. interest.” It is not expressed whether Prince signed and delivered this agreement or not, the most natural deduction is that he did. As it is alleged to be an agreement appended to the note, it must have been in writing, and as it is alleged to have been made at the time of the execution of the note, it must be understood to have been made by Prince, in the usual way of making written agreements, by signing them. Thus the...