Rogers v. Broadnax

• Decision Date: 01 January 1859
• Citation: 24 Tex. 538
• Parties: BYRD R. ROGERS v. ROBERT BROADNAX.
• Court: Texas Supreme Court

24 Tex. 538

BYRD R. ROGERS

v.ROBERT BROADNAX.

Supreme Court of Texas.

1859.

It is a valid defense to a promis sory note, in the hands of one who received it after maturity, that it was given for the purchase of a tract of land, under an agreement in writing, that the vendor should cancel and discharge the title of another party to a part of the land, before any portion of it should be payable; and that the vendor has failed to comply with that condition.

Where the written agreement, in such case, bears a date anterior to that of the note, prima facie, the execution of it, was the result of some new arrangement concerning the payment for the land, or related to some other transaction. The burden of establishing the alleged relation between them, devolves on the defendant.

Where other evidence, than what the face of the note imports, has to be resorted to, in order to explain the circumstances and understanding under which it was given, for the purpose of establishing the defense, it is error to charge the jury to find for the defendant.

A correspondence of the note in date, and with the exact terms of the agreement, with the admission of the failure to extinguish the title referred to, might justify such a charge.

In instructing the jury, as to the law of the case, the judge should distinctly separate questions of law, from questions of fact; and a charge which determines both, without separating them, and without submitting the questions of fact to the decision of the jury, is erroneous. 29 Tex. 402.

APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.

This was a suit by Byrd R. Rogers against Robert Broadnax, on two promissory notes, under seal, in the ordinary form; one of them for $4,000, and the other for $5,000.

The defendant answered by a general denial, and set up special matters as a defense; the plaintiff demurred to the special answers, which need not be here set forth, and his demurrer was overruled.

The plaintiff introduced in evidence the notes sued on; the defendant introduced a written agreement between Broadnax and William Means, the payee of the notes, which recited, that they had concluded a contract, by which the latter sold to the defendant a certain tract of land, therein described and set forth, for the sum of $14,400, of which $6,300 was payable on the 15th day of January, 1854, and the balance in two equal installments; the first, the sum of $4,050, on the 15th January, 1855, and the further sum of $4,050, on the 15th January, 1856. Means therein bound himself to make to Broadnax, a good and sufficient deed of warranty against all the heirs of Thomas R. Miller, deceased, and all other persons claiming through, or under them, on the full payment of the said several sums of money, therein specified, at the maturity of the installments. The said agreement recited further, that whereas an instrument appeared on the records of the county of Gonzales, bearing date the 6th day of October, 1838, executed by Edward B. Miller and Dicey H. Miller to J. Winston Quarles, by which one-sixth part of the estate of Thomas R. Miller, was conveyed to the said Quarles; therefore, Means bound himself to have the said instruments cancelled and discharged, before the said Broadnax should be bound to make any further payment on the said contract, than the first payment of $6,300.

It was proved, that the notes sued on were given by the defendant to Means, on the 13th of December, 1854, for the purchase of the land, and were by Means assigned to F. T. Wooten and T. Clark, executors of the will of E. B. Miller, deceased, to whose estate the lands had belonged, for the purpose of making payment of his (Means') purchase from one Herron, who had bought the land from the estate, without having paid for it, and had sold tracts therefrom to W. D. Smith, John R. Smith, and Means; and on the said 13th of December, 1855, the agent of the executors, with the knowledge and in the presence of the defendant, received divers notes, among which were the said notes and the notes of the Smiths, as collateral paper, from Herron to the estate of Miller. At the same time, Marshall, as the agent of the executors, executed a writing, acknowledging the receipt of the notes of Broadnax to Means, bearing even date therewith, and describing them as they were set out in the petition, and also notes of the other parties, to be applied when collected, to the satisfaction of the debt of Herron, of $19,658.35, due on the purchase of the land, and secured by a mortgage thereon.

It was proved, that one Quarles claimed one-sixth of the Miller land, and that that claim was still in litigation. At the time of making the application of notes, on Herron's indebtedness, in view of this...