Robertson v. Warren

• Decision Date: 20 February 1907
• Citation: 100 S.W. 805
• Parties: ROBERTSON v. WARREN.
• Court: Texas Court of Appeals

100 S.W. 805

ROBERTSON v. WARREN.

Court of Civil Appeals of Texas.

February 20, 1907.

On Rehearing, March 20, 1907.

Error from District Court, Bexar County, J. L. Camp, Judge.

Action by John H. Warren against J. A. Robertson and others. From a judgment for plaintiff, Robertson brings error. Affirmed.

Paschal & Ryan, for plaintiff in error. Swearingen & Tayloe and Davis & McFarland, for defendant in error.

FLY, J.

This is a suit on a promissory note given by plaintiff in error, John R. Price, and R. R. Price to defendant in error for $13,500, on September 28, 1892, and payable one year after date. This suit was instituted on January 22, 1903, and the amended petition, on which the cause was tried, was filed December 27, 1904. It is alleged in the last-named pleading that the note was protested for nonpayment on October 2, 1893. A contract in renewal of the contract evidenced by the original note was alleged in the petition; the same being contained in a letter in which defendant in error was authorized by plaintiff in error to sell certain property and agreeing to pay any balance remaining due on the debt. The suit as to John R. Price and R. R. Price was dismissed, and plaintiff in error answered by general and special exceptions and pleas of limitation. The cause was tried without the intervention of a jury, and judgment was rendered for defendant in error in the sum of $4,763.50.

On September 28, 1892, J. A. Robertson, John R. Price, and R. R. Price executed to John H. Warren, "Cashier of Oskaloosa, Ia.," a promissory note for $13,500, due one year after date, with interest at 8 per cent. per annum. On October 2, 1893, the note was protested for nonpayment, and on December 12, 1893, time of payment was extended for one year from September 28, 1893. Several payments on the note were made, one on that date and the others thereafter; the last being of date June 24, 1899. Defendant in error placed in evidence the following letter written to him by plaintiff in error: "Monterey, N. L., April 2nd, 1898. Mr. J. H. Warren, Oskaloosa, Iowa. Dear Sir: Herewith I hand you letter to Mr. E. G. McGilton, Omaha, Neb. Mr. McGilton is my attorney in fact at Omaha, and I have instructed him to convey to you my property in that City, and which is more fully described as the `McGavock Warehouse Property.' I attach herewith letters from Mr. McGilton dated Nov. 9th 1897, and March 2nd, 1898, copy of my telegram to Messrs. McCabe, McGilton & Rath, dated April 1st, 1898 and the original of their reply of the same date. Also letters from G. H. Ten Brock, dated Sept. 15th, 1897 and Sept. 21st, 1897; all bearing upon the property in question. In conveying this property to you, it is my purpose to effect the payment of some six thousand dollars to you due on my agreement with you relative to the liquidation of the Price note. In furtherance of our conversation, it is my understanding that you will take charge of the property and dispose of same for the purpose above named, with the understanding that all surplus over and above your debt will be accounted for to me. I do not wish to place any restrictions upon you in the sale of the property, leaving it entirely to your good judgment to obtain the best price you can, consistent with your interests. Any balance remaining due you I agree to pay. You can rely upon the courteous treatment of Mr. McGilton and his firm, who I am sure will render you every assistance possible in the matter. I also beg to hand you a letter of introduction to Dr. W. B. Taylor, secretary and treasurer of the Globe Loan & Trust Company, of Omaha. Mr. Taylor is a gentleman well versed in real estate matters in Omaha, and can no doubt aid in an early disposal of the property. Very sincerely yours, J. A. Robertson." The property referred to was sold by defendant in error on June 22, 1899, and net amount received was credited on the note.

The agreement to pay any balance remaining after the proceeds of the land sale were credited on the note could not have been breached until that time, and consequently no cause of action took place until the sale was made and the balance ascertained, and the claim was not barred, therefore, until four years from June 22, 1899, the date of the sale. The suit was begun on January 22, 1903, less than four years after the cause of action accrued. But it is contended by plaintiff in error that the amended petition sets up a new and different cause of action from the one declared on in the original petition, but the last-named pleading is not contained in the record and this court cannot determine the question raised. The presumption...