Scott v. Llano County Bank

• Decision Date: 23 October 1905
• Citation: 89 S.W. 749
• Parties: SCOTT et al. v. LLANO COUNTY BANK.
• Court: Texas Supreme Court

89 S.W. 749

SCOTT et al. v. LLANO COUNTY BANK.

Supreme Court of Texas.

October 23, 1905.

Error from Court of Civil Appeals of Third Supreme Judicial District.

Action by the Llano County Bank against A. K. Scott and another. A judgment in favor of plaintiff was affirmed by the Court of Civil Appeals (85 S. W. 301), and defendants bring error. Reversed.

McLean & Spears, for plaintiffs in error. Flack & Dalrymple and S. R. Fisher, for defendant in error.

WILLIAMS, J.

A partnership composed of T. J. Moore and W. J. Moore, and doing business under the name of Llano County Bank, brought this suit against J. B. Middlebrooks and A. K. Scott to recover the amount of a note of which they were the makers, payable at six months to plaintiffs by their firm name, of date November 21, 1902, for the sum of $2,138.75. While upon the face of the note Middlebrooks and Scott were joint and several makers and principals, Scott pleaded that in fact he signed for the accommodation of Middlebrooks, and that, as between themselves, he was only a surety, and set up as a defense certain transactions, which will be stated, between the bank, Middlebrooks, and himself. No further statement of the pleadings is necessary than that they raised the questions discussed.

The transactions upon which the points to be decided depend were as follows: On June 7, 1902, Middlebrooks executed to the American National Bank of Austin his note for $9,080, payable at six months, to secure which he at the same time executed his trust deed upon certain cattle, describing them, as held in the Middlebrooks, McCuistion, and Kuykendall pastures in Llano county, Tex., amounting to 908 head, of which some were branded 7X, some were branded 7, and others were branded 4; the number, age, and class of the animals in each brand being given. The mortgage also covered the increase of the cattle. On November 21, 1902, Middlebrooks had become indebted to plaintiffs in the sum of $2,138.75, and for this the note sued on was given; Scott, to the knowledge of plaintiffs, signing for Middlebrooks' accommodation. At the same time Middlebrooks executed to Scott a mortgage to secure him as against liability as surety, which mortgage described the property included in it as follows: "The following described property, situated in the county of Llano and state of Texas, to wit, 908 head of mixed cattle branded in one or the other of the following brands, to wit: 7 on left side, 4 on right hip, or 7X on left side; said cattle being now situated in said Llano county, in what is known as the Kuykendall, McCuistion and Middlebrooks pastures, and being all the cattle owned by the said Middlebrooks in above-mentioned brands. This mortgage is subject to two others: One given to American National Bank of Austin, Tex., to secure $9,080, dated June 7, 1902; the other given to secure J. D. Slator in payment of note for $5,000, dated June 3, 1902, and due November 30, 1902. Together with all increase thereof, and accretions or additions thereto." Thereafter, and prior to May 2, 1903, plaintiffs became the owners of the note given by Middlebrooks to the Austin bank, which may be called the first note, and were at the date last given owners of both it and the second note. After some negotiations between the plaintiffs, Middlebrooks and Scott, looking to a sale of the cattle by Middlebrooks to T. J. Moore, and an application of the proceeds to the two notes, Scott, on the 2d day of May, 1903, signed the following writing; all of the parties agreeing to the proposed sale: "Llano, Texas, 2d May, 1903. Mr. J. B. Middlebrooks, Llano, Texas—Dear Sir: In regard to the sale of your cattle on which I hold a second mortgage, will say I agree for you to sell the cattle to T. J. Moore upon the following terms: One hundred and eighty five head of the two-year old steers at $14, the remainder of the steers at $10 per head, and the stock cattle at $13 per head, no calves counted, provided that the proceeds be applied to the payment of the first mortgage on said cattle of $9,080, and not exceeding $700 to be paid as pasturage, and the remainder of the proceeds to be applied as a credit on the note against you held by Llano County Bank, on which I am security. Yours truly, [Signed] A. K. Scott." Under this understanding 776 of the cattle covered by the mortgages were accounted for by plaintiffs as having been delivered by Middlebrooks to T. J. Moore, and the proceeds at the agreed price were applied to the discharge of the first note and the charges for pasturage, leaving only a balance of $219.60, which sum was applied as a credit on the second note; and by the judgment below plaintiffs recovered the balance.

The defense to which the evidence was principally directed was that, through the fault of plaintiffs, some of the cattle subject to the two mortgages were not so delivered, but were carried out of the state by Middlebrooks and put beyond Scott's reach. That Middlebrooks did carry cattle away to the Indian Territory is an admitted fact; but, whether or not any of them were subject to the mortgages, and, if so, whether or not plaintiffs are responsible to Scott for their loss, are the chief controversies. With reference to the first point, the evidence, upon which we forbear comment, was at least sufficient to warrant a finding by a jury that some of the mortgaged cattle were appropriated by Middlebrooks, who was and is insolvent, and taken...