Shelton v. Lock
| Decision Date | 12 June 1929 |
| Docket Number | (No. 3250.) |
| Citation | 19 S.W.2d 124 |
| Parties | SHELTON v. LOCK. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hemphill County; W. R. Ewing, Judge.
Suit by Virgil Lock against B. M. Shelton and another. From a judgment against defendant named, he appeals. Affirmed.
Dan B. Hoover and E. J. Cussen, both of Canadian, for appellant.
Will Crow, of Canadian, for appellee.
On April 19, 1926, W. G. Clark and wife executed and delivered to one Myatt their promissory note, due 12 months after date, in the sum of $700, which provided for interest at the rate of 7 per cent. per annum. There was an indorsement upon said note to the effect that the note represented a loan of money from Myatt to the Clarks to be used in purchasing a certain town lot in the town of Canadian. This note was assigned to the appellee Lock, who alleges that he was the owner and holder thereof on the 1st day of July, 1927. In November, 1928, he sued Shelton and Clark, setting up the foregoing facts, and further alleges that he acquired said note for value, in due course, from Myatt during the month of November, 1926. That on or about the 25th day of July, 1927, he sold the note conditionally to the appellant Shelton, the consideration being the principal and accrued interest aggregating $762.05. He further alleges: That at the maturity of the note, Clark was unable to pay it. That during the month of June, 1927, Shelton had been trying to purchase the lot mentioned in the indorsement upon said note from Clark, but they had not agreed upon a price. That they continued to negotiate with reference to the sale and purchase of the lot, and on or about the 15th day of July, 1927, the defendant Shelton approached plaintiff and told him that he was on a deal to purchase the lot from Clark, and that, if plaintiff would indorse the note to him (Shelton) he could use it to trade in on the purchase of said property from Clark, and further represented to plaintiff that, if he succeeded in consummating the deal with Clark, he would at that time pay plaintiff the amount of the principal and interest due on the note; that, if he should fail to purchase said lot from Clark, then and in that event he would return the note to plaintiff or pay plaintiff the sum of $762.05, for said note. Plaintiff alleges that these false representations and promises were made to him by Shelton in order to secure the possession of the note, and, but for such false promises and representations, plaintiff would not have assigned the note to the said Shelton. He further alleges that Shelton did use the note in purchasing the said property from Clark, and that on or about the 16th day of December, 1927, Clark and wife conveyed the lot to Shelton by warranty deed, reciting as part of the consideration, the receipt from Shelton of $773.50, being the amount of said note and interest to that date. Plaintiff further alleges the failure of Shelton to pay him the amount of said note as agreed and prays for damages.
The court sustained a general demurrer to the plaintiff's petition in so far as he sought to recover against Clark.
Shelton answered by general demurrer, numerous special exceptions, a general denial, and alleged by way of cross-action that he had loaned Lock several sums of money, aggregating the sum of $665, and that the note was transferred to him by plaintiff in settlement of said indebtedness.
The case was submitted to a jury upon one special issue, in response to which the jury found that Lock delivered the note in question to Shelton to be used by Shelton as part of the consideration in the purchase of the town lot from Clark, with the understanding and agreement that, if Shelton used said note for said purpose, he would pay Lock the amount of money the note called for. In accordance with the verdict, judgment was entered for Lock for the full amount of the note and interest.
The first proposition urged is that the court erred in overruling the defendant's general demurrer to the plaintiff's petition.
In the petition, plaintiff set out some of his evidence and alleges numerous facts which are immaterial and constitute surplusage. Stripped of these matters, we think the petition is good as against a general demurrer.
In addition to the necessary allegations to constitute a cause of action, plaintiff alleged the circumstances under which he conveyed the note to Shelton, in substantially the following language: That he was hard pressed for money during the months of June and July, 1927, and was making every effort possible to collect the Clark note and doing all in his power to help Clark sell the property so that he might be able to collect his note and that, on or about the 15th day of July, the defendant Shelton approached plaintiff and told him that he (Shelton) was on a deal to purchase said lot from Clark, and, if plaintiff would indorse the note over to him (Shelton) he would use it to trade in on said property with Clark and would be in a better position to make a purchase of said property from Clark by having said note in his possession and representing to Clark that he owned said note and could make delivery of said note as part of the purchase price for the property; that Shelton then, knowing that Clark was trying to sell the property to pay plaintiff the amount of said note, further represented to plaintiff: ...
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