Shepherd v. Erickson
Decision Date | 25 May 1967 |
Docket Number | No. 15094,15094 |
Citation | 416 S.W.2d 450 |
Parties | Don SHEPHERD, Appellant, v. Peter F. ERICKSON, Appellee. . Houston |
Court | Texas Court of Appeals |
Wallace T. Sisk, Houston, for appellant.
Fred C. Brigman, Jr., Houston, Brigman, Martin & Smith, Houston, of counsel, for appellee.
This is an appeal from a summary judgment. Appellee sued appellant, Don Shepherd, on a promissory note in the sum of $50,000.00, dated March 23, 1966, and payable to appellee on demand at The Bank of Texas in Houston, with interest and attorney's fees.
Appellee's affidavit is to the effect that he was still the owner and holder of said note and had many times between September 23, 1966 and November 1, 1966 requested payment of the note, and upon appellant's failure to pay the same he placed the note in the hands of his attorneys for collection and agreed to pay them attorney's fees in excess of the amount provided in said note.
Appellant asserts that the court incorrectly held there was an absence of any genuine issue of fact, and also erred in holding that appellant was entitled to a $5,000.00 credit without also holding that there was a material issue of fact with respect to an extension or deferment of payment of the note under the disputed evidence. In his affidavit appellant stated certain matters leading up to the execution of the $50,000.00 note and alleged that appellee informed him that if he could obtain certain money from a trust, the $50,000.00 note would not be due and payable until the financing involved in the trust was due and payable, even though his note was a demand note. He also stated in his affidavit that on or about October 1, 1966 appellee reiterated that the note was not due and payable in keeping with the over-all financing arrangement under which the note was entered into. He further stated that appellee requested him to make a payment direct to the Fort Worth National Bank in the approximate amount of $5,000.00 which would be offset against the note due appellee when such note was actually due, and that he made such payment of $5,000.00.
At the hearing on the motion for summary judgment, appellee agreed to the allowance of a credit of the $5,000.00 which appellant asserted he had paid, and thereupon the trial court entered summary judgment for the balance of the note plus attorney's fees and interest. Resolving all doubts as to the existence of a genuine issue of material fact against appellee and in favor of appellant, we are of the opinion that the trial court did not err in granting the summary judgment. Since appellee allowed appellant the $5,000.00 credit at the hearing, the only genuine issue of material fact was effectively eliminated. Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929; Womack v. Allstate Insurance Co., 1956, 156 Tex. 467, 296 S.W.2d 233; Stafford v. Wilkinson, 1957, 157 Tex. 483, 304 S.W.2d 364; Rule 166--A, Texas Rules of Civil Procedure.
Appellant's allegations with respect to certain negotiations and agreements leading up to the execution of the $50,000.00 note and particularly those relating to the time of payment of the note would be inadmissible in evidence upon a trial of the case since such allegations clearly constituted an effort on the part of appellant to vary by parol the terms of the written instrument with respect to payment. In Kuper v. Schmidt, 1960, 161 Tex. 189, 338 S.W.2d 948, the court said:
See also Super-Cold Southwest Co. v. Elkins, 1942, 140 Tex. 48, 166 S.W.2d 97; Community Savings and Loan Association v. Fisher, Tex .Sup.1966, 409 S.W.2d 546; Wells v....
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Shearer v. Mitchell, 260
...terms of the written instrument. Such statements would not be admissible in evidence upon a trial of the case. Shepherd v. Erickson, 416 S.W.2d 450 (Tex.Civ.App.--Houston 1967) and cases cited therein. Appellant's first point is that the court erred in rendering summary judgment on the plea......
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Echols v. Professional Financial Associates, Inc., 8804
...n.r.e.); Sonfield v. Eversole, 416 S.W.2d 458 (Tex.Civ.App. Texarkana 1967, writ ref'd n.r.e.); Shepherd v. Erickson, 416 S.W.2d 450 (Tex.Civ.App. Houston-1st Dist. 1967, writ ref'd n.r.e.); Crispi v. Emmott, 337 S.W.2d 314 (Tex.Civ.App. Houston 1960, no writ); Workman v. Ray, 180 S.W. 291 ......
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...Smith Lumber Co. v. Gaston, 447 S.W.2d 736, 738 (Tex.Civ.App.-Amarillo 1969, writ ref'd n.r.e.); Shepherd v. Erickson, 416 S.W.2d 450, 452 (Tex.Civ.App.-Houston 1967, writ ref'd n.r.e.). In the instant case, the maker of the note and one of its joint payees testified that the note was to be......
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Armstrong v. G. A. C. Leasing Corp., 7604
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