Rahe v. Yett

• Decision Date: 18 February 1914
• Citation: 164 S.W. 30
• Parties: RAHE v. YETT et al.
• Court: Texas Court of Appeals

164 S.W. 30

RAHE v. YETT et al.

Court of Civil Appeals of Texas. San Antonio.

February 18, 1914.

Appeal from District Court, Kerr County; R. H. Burney, Judge.

Action by Wm. Yett against Otto Rahe and another. From a judgment for plaintiff, the named defendant appeals. Reformed and affirmed.

H. C. Geddie, of Kerrville, for appellant.

MOURSUND, J.

Wm. Yett sued Otto Rahe as maker, and A. Wood as indorser of a check for $228.48, dated October 1, 1912, executed by Rahe to Wood, and sought to establish and foreclose an equitable lien upon three certain lots sold by him to Wood for said check. It was alleged that the check was indorsed and delivered to plaintiff on October 5, 1912, and payment thereof was refused by the bank upon which it was drawn.

Wood answered by general demurrer, various special exceptions, a general denial, and a special answer containing the following allegations: That he sold Rahe certain land, and it was understood between them at the time of such sale that he would take pay for his land in merchandise, such as he needed from time to time, out of Rahe's store, and that Rahe would pay for such other necessaries as were essential for the proper care and maintenance of Wood and his wife from time to time, until the consideration for said land was used up; that Rahe complied with his part of said contract and furnished Wood necessaries from his store and paid his drug and doctor's bills; that, when said check was made, the amount of said check was yet due Rahe by Wood, and it was agreed that Rahe would furnish Wood necessaries during the month of September, 1912, as he had been doing, and on October 1st, when such check should become due, credits for such amounts as had been furnished and paid by Rahe would be made on said check; that at the time said check was executed Wood had a small account with Rahe, and continued to trade with him under the terms of the contract above mentioned, and at Wood's instance and request Rahe paid a physician's bill and a drug bill on October 1, 1912, the aggregate of the amount due Rahe and the amounts so paid out being $102.48; that at the time Wood bought the lots from plaintiff, and prior thereto, the latter had full knowledge of all the facts above mentioned, and it was understood and agreed that plaintiff would settle the account due Rahe and adjust the matter with him; that in fact the price he was to pay plaintiff for the lots was $125 and not $225 as alleged by plaintiff; that no lien was retained by Wood upon the land sold by him to Rahe, and it was agreed that said check was accepted and held by Wood for his protection. Other allegations are made, not necessary to state, and defendant Wood sought to rescind the sale of the lots by plaintiff to him.

Rahe answered by general demurrer, special exceptions, general denial, and a special answer to the following effect: That some time prior to September 1, 1912, he bought certain land from Wood for $600, and it was agreed that Wood would accept pay for the land in merchandise, such as he and his family needed, out of Rahe's store, and that Rahe would pay for such other necessaries as Wood and his family needed, including drug bills and doctor's bills; that he had furnished Wood from time to time as agreed, and would from time to time give Wood a check, payable a month or more in advance of the date when given, for the balance or approximate balance due at the last settlement, to protect Wood, and when the check became due it would be taken up and another one given, or an understanding had between them; that on September 1, 1912, he gave Wood his check for $225, due October 1st thereafter, for the purpose of covering all sums due Wood for the balance of the purchase price of said land, and for the purpose of securing to Wood such purchase price; that in fact the check for $228.48 was for a greater sum than he owed Wood, as Wood then had an account of a few dollars with Rahe; that on October 1, 1912, when the check became due, Wood owed Rahe for merchandise furnished under the contract aforesaid, $36.43; that at Wood's instance and request that he pay Dr. Langford's bill for medical services amounting to $56.35, he paid said bill on October 1st, and also at Wood's request paid Wood's drug bill to O. Sellers; that the total sum thus paid by Rahe for Wood and to be credited on said check at the maturity of same on October 11, 1912, was $102.48; that the amount due Wood, not taking into consideration the balance due defendant on account, was $228.48, and, after the credits aforesaid were made, there remained due on the land and on said check the sum of $126.00; that he has tendered plaintiff said sum of $126, which plaintiff declined, and refused to surrender the check, and he tenders into court $130.86 to cover said amount with interest; that plaintiff accepted the check from Wood, after its maturity, knowing there was a credit due on said check amounting to $102.48, and took same in full payment for the lots sold by him to Wood. He prayed that the sale of the lots by plaintiff to Wood be rescinded, or that plaintiff be required to accept the money tendered, and take nothing further by his suit.

Plaintiff, by supplemental petition, urged a general demurrer and special exceptions to the answers, and alleged that on or about October 8, 1912, and after Wood had sold and indorsed the check to plaintiff, Rahe sued Wood for the debt of $102.48, which he claims in his answer should be credited on the check, and on November 4, 1912, obtained judgment for said sum; that Rahe had an attachment issued in said suit, and levied upon the lots sold by plaintiff to Wood; that such judgment is still in force and so is the attachment lien; that if Rahe ever had the right to have said $102.48 credited on the check he also had the right, after sale and indorsement of the check by Wood, to collect the $102.48 from Wood by suit, but the two remedies were inconsistent, and could not be pursued together, and the adoption of the remedy of suit against Wood was an election between said remedies, and precluded him from claiming the right to have the $102.48 credited upon the check.

Several of the special exceptions urged by plaintiff presented the objection to the answers that thereby a parol agreement was alleged changing and modifying a written contract. No judgment was entered with respect to the demurrers and exceptions, but Wood and Rahe in their trial amendment state that the same is filed to amend the answers in the respects wherein the court had held them defective. In such trial amendment they amplified the defenses urged in their original answers, and Wood alleged that plaintiff knew there was an offset due Rahe on the check; that the check showed that payment thereof had been refused by the bank; and that he told plaintiff there was a credit of about $100 to be placed on the check. Wood tendered a reconveyance of the lots deeded him by plaintiff, and both defendants tendered a release of the attachment lien upon the lots. No exceptions were urged to the trial amendment.

By supplemental answer Rahe alleged that the suit mentioned in plaintiff's supplemental petition was brought at the instance of his attorney, Louis Walter, as a mere precautionary measure, when he learned that the check had been transferred and before he knew that the transfer did not affect his liability; that said suit has not been prosecuted further than to obtain judgment, no lien has been foreclosed, and it is not his purpose, nor has it been since he discovered the real facts in the case, to hold such judgment.

The trial before the court resulted in a judgment for plaintiff against both defendants for $234.80, from which Rahe appealed.

The court filed findings of fact and conclusions of law. The facts found, in so far as they affect questions raised upon this appeal, briefly stated, are as follows:

(1) In June, 1912, Wood sold Rahe certain land, the deed reciting $600 cash paid, but the parties had an agreement as to the payment for the land substantially as alleged by the defendants in their answer herein, "payment to be made by Rahe from time to time in merchandise and in the settlement of other accounts for the said Wood."

(2) On September 1, 1912, Rahe owed Wood a balance for said land of $228.48, and gave Wood a check for such amount, dating same October 1, 1912, being the check sued on by plaintiff. It was agreed between Wood and Rahe at the time the check was given that it was not due or to be paid until ...