Slaughter v. Morton

• Court: Texas Court of Appeals
• Writing for the Court: Hall
• Citation: Slaughter v. Morton, 195 S.W. 897 (Tex. App. 1917)
• Decision Date: 04 April 1917
• Docket Number: (No. 1145.)
• Petition History: writ ref'd
• Parties: SLAUGHTER v. MORTON et al.

195 S.W. 897

SLAUGHTER v. MORTON et al.

(No. 1145.)

Court of Civil Appeals of Texas. Amarillo.

April 4, 1917.

On Motion for Rehearing, May 16, 1917.

Appeal from District Court, Dallam County; D. B. Hill, Judge.

Suit by C. E. Williams against J. G. Morton, R. E. Stalcup, Frank B. Farwell, and C. C. Slaughter Company, with answer and cross-action by defendant Morton against G. G. Wright, W. B. Slaughter, and C. C. Slaughter Company. Judgment for plaintiff and for defendant Morton and against defendant W. B. Slaughter, and the latter appeals. Judgment in favor of defendant Morton set aside, and judgment otherwise affirmed.

John W. Pope, of Dallas, for appellant. Tatum & Tatum and R. E. Stalcup, all of Dalhart, J. Y. Powell, of Houston, and Hartman & Ballreich, of Pueblo, Colo., for appellees.

HALL, J.

Appellee Williams instituted this suit to enjoin the collection of a certain note in the sum of $5,424, and the foreclosure of a deed of trust by means of a trustee's sale, for the purpose of satisfying the note. It is alleged, in substance, that on or about the 6th day of July, 1912, C. E. Williams and wife executed their certain promissory note in the sum of $5,424, due six months after date, payable to the order of the First National Bank of Dalhart, Tex., and bearing interest at the rate of 10 per cent. per annum from maturity; that appellee Morton became the owner and possessor of said note during the month of November, A. D. 1912, and that he held a certain deed of trust conveying certain real estate in the town of Dalhart, executed by Williams, to secure the payment of the said note; that on the 30th day of June, 1916, and on the 7th, 14th, and 21st days of July, A. D. 1916, by and through one Frank B. Farwell (alleging the said Farwell to be a substitute trustee), by virtue of said deed of trust, was undertaking to sell said real estate and apply the proceeds thereof to the payment of the note in controversy. J. G. Morton, R. E. Stalcup, Frank B. Farwell, and the C. C. Slaughter Company were made defendants.

Appellee Morton, on the 17th day of August, 1916, filed in the district court of Dallam county his answer and cross-action, and obtained a mandatory writ of injunction, compelling the appellees G. G. Wright, W. B. Slaughter, and C. C. Slaughter Company, a corporation, to produce in open court the Belle Green Ritchey notes, and restraining them, and each of them, from selling or otherwise disposing of three certain vendor's lien notes for the principal sum of $2,170.50, each, and known as the Belle Green Ritchey notes; that said notes constituted collateral security to the payment of the said note in controversy. In his answer and cross-action Morton prayed for judgment for the title to the said Williams note, and for the foreclosure of the deed of trust lien, as alleged, and for the foreclosure of his pledgee's lien upon the Belle Green Ritchey notes. October 4, 1916, appellees G. G. Wright, W. B. Slaughter, and C. C. Slaughter Company answered. Appellee Slaughter alleged the facts to be that he was and is the legal owner of the Williams note for the principal sum of $5,424, dated July 6, 1916, and that the appellee J. G. Morton did not acquire said note for a valuable consideration from him nor from any one else authorized to sell or transfer the said note, and that the said Morton was holding the possession of same wrongfully and illegally; that he acquired such possession through illegal means, and without knowledge or consent of said Slaughter, and that the three Belle Green Ritchey notes were never at any time pledged by the said Williams and wife to secure payment of the said $5,424 note. Appellee Morton alleged in his original answer and cross-action that he acquired the note in controversy from W. B. Slaughter and Coney Slaughter; and on October 11, 1916, filed a trial amendment alleging that he obtained the note in controversy from C. C. Slaughter as agent of the appellant, W. B. Slaughter. These facts were denied by appellant. A trial before a jury resulted in a verdict awarding the note in controversy to appellee J. G. Morton, foreclosing the deed of trust lien on the real estate described therein, and decreeing that the three Belle Green Ritchey notes were not pledged by Williams and wife as collateral to secure payment of the note in controversy. It was further adjudged that Slaughter recover nothing, and that Williams recover the Belle Green Ritchey notes.

The first assignment of error covers 11 pages of appellant's brief. It consists of arguments, statements of fact, reproduction in question and answer form of a great deal of the testimony, and, under a strict construction of the rules, does not merit consideration. We have decided, however, to consider it, since it presents simply a question of the admissibility of secondary evidence of the contents of a letter written by W. B. Slaughter to C. E. Williams. Several witnesses were introduced to prove that they had made search in places where said letter would probably be found and had failed to find it. No notice to produce it was given until at the time of the trial, and over numerous objections the witness Morton was permitted to state its contents. We think the evidence is sufficient to establish its loss, and secondary evidence was admissible.

The second assignment of error is based upon the court's action in permitting the following question and answer:

"Q. Just tell the jury and the court what Coney C. Slaughter would do with reference to these matters that you have spoken about, Miss Atkinson. A. Well, sometimes he would refer them to his father and sometimes he would write about them himself."

The objection urged is that the question and answer were too general, and so vague and indefinite that they did not tend to prove the agency of Coney Slaughter in transferring the note to Morton. Three propositions are urged under this assignment which, in our opinion, are not germane. The essence of the first proposition is that persons dealing with an assumed agent, whether general or special, are bound to ascertain, not only the fact of agency, but the extent of his authority, and, in case either is controverted, the burden of proof is upon the party asserting agency. The second proposition is that authority delegated to a person to write and forward notices as to interest,...