Shropshire v. Smith

• Decision Date: 23 September 1896
• Citation: 37 S.W. 174
• Parties: SHROPSHIRE v. SMITH et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

37 S.W. 174

SHROPSHIRE v. SMITH et al.¹

Court of Civil Appeals of Texas.

September 23, 1896.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by Francis Smith & Co. against L. L. Shropshire. There was a judgment for plaintiffs, and defendant appeals. Affirmed.

W. C. Berry and W. W. Boone, for appellant. H. P. Drought, for appellees.

FLY, J.

Appellees brought suit against appellant on the following instrument, executed by appellant: "Whereas, C. T. Shropshire and others purchased from J. P. Hickman and B. F. Darlington a ranch of 12,428 acres, more or less, near the town of Dilley, upon which ranch Francis Smith & Co. have made a loan of $26,000, on which loan of $26,000 the interest is unpaid, and said ranch is advertised to be sold at trustee's sale for the satisfaction of said debt on the first Tuesday in April: Now, therefore, as an inducement and consideration that the said Francis Smith & Co. shall withdraw said sale, I agree with the said Francis Smith & Co. that whatever balance remains unpaid of the $2,600 interest due on said loan and interest thereon, which $2,600 is represented by two notes of Hickman and Darlington, said notes indorsed by Leonardo Garza, bearing date of April 1st, 1892, for $1,300 each, maturing respectively on the first day of September, 1894, and the first day of March, 1895, shall be paid promptly on the first day of September, 1895, and, if not paid by the said C. T. Shropshire and others, I will pay the same on said date." It was alleged that the balance unpaid on the said sum of $2,600 was about $800, that it had not been paid by the makers of the notes, or any one else, and that appellant had refused to pay the same. The petition was excepted to because it did not allege that appellant had bound himself to pay any sum; because no certain sum was alleged to be due; because it appeared that appellant was only a surety or guarantor, and it was not alleged that the amount had been demanded of the principals; because the principals were not made parties; because it was not alleged that the land was withdrawn from sale, as provided in the instrument, and because it was not alleged that appellees had accepted the contract. Appellees, in a trial amendment, alleged that upon execution of the instrument the land was withdrawn from sale. This amendment was complained of as not curing the defect in the petition. The exceptions were overruled, and, the case being tried by the court without a jury, judgment was rendered in favor of appellees for $743.33.

It is contended that the court erred in overruling the exceptions, and that there was no evidence that showed what amount was due on the notes. The instrument...