Slaughter v. Morton

• Decision Date: 12 April 1916
• Docket Number: (No. 947.)
• Citation: 185 S.W. 905
• Parties: SLAUGHTER v. MORTON.
• Court: Texas Court of Appeals

185 S.W. 905

SLAUGHTER v. MORTON.

(No. 947.)

Court of Civil Appeals of Texas. Amarillo.

April 12, 1916.

Rehearing Denied May 10, 1916.

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

Action by J. G. Morton against W. B. Slaughter. Judgment for plaintiff, and defendant appeals. Affirmed.

Towne Young, of Dallas, and J. Y. Powell, of Dalhart, for appellant. Tatum & Tatum, of Dalhart, for appellee.

HENDRICKS, J.

This controversy involves the liability of W. B. Slaughter, as a guarantor of the payment of the following note:

"$10,200.00. No. 1. Dalhart, Texas, Dec. 16, A. D. 1911. Three years after date, I promise to pay to the First National Bank of Dalhart, Texas, or order, the sum of ten thousand two hundred 88/100 dollars, with interest thereon from date until paid, at the rate of 10 per centum per annum, the interest payable semiannually as it accrues, both principal and interest payable at Dalhart, Texas, for value received. This note is given in part payment for a certain lot or parcel of land situated in Hartley county, Texas, being section No. 251, block 44, certificate 49/7025, H. & T. C. Ry. Co. containing 640 acres of land, this day conveyed to J. D. Rawlings by the First National Bank and to secure payment of same, according to the tenor hereof, a vendor's lien is retained in said conveyance and is hereby acknowledged. All past-due interest on this note shall bear interest at the rate of 10 per centum per annum after the annual maturity thereof. And it is hereby specially agreed that if this is placed in the hands of an attorney for collection or if collected by suit, I agree to pay 10 per cent. additional on the principal and interest then due thereon as attorney's fees.

                                "[Signed] J. D. Rawlings."
                

Same being indorsed on the back as follows:

"Without recourse. First National Bank of Dalhart, Texas, by ......, President.

"We guarantee payment. C. C. Slaughter. W. B. Slaughter.

"Int. to June 16, paid 1912. Int. to Dec. 16, paid 1912. Int. to June 15, paid 1913. Int. to Dec. 16, paid 1914."

Ancillary to the original suit instituted by Morton, the holder of the note, certain writs of attachment were issued and levied upon different parcels of real estate, based in part upon the following affidavit:

"The plaintiff in attachment * * * says that W. B. Slaughter, the defendant, is justly indebted to the said plaintiff in the sum of $11,569 94/100, * * * and that the said debt is due for property obtained under false pretenses."

The suit against W. B. Slaughter upon the guaranty, it will be noted, with reference to the note, is upon allegations of the execution and delivery by J. D. Rawlings, the maker thereof, to the First National Bank of Dalhart, the transfer and assignment by said bank of said note to the defendant, W. B. Slaughter, and the further sale and transfer subsequent to the execution and before maturity of said note for a valuable consideration by the said Slaughter, to Morton, the plaintiff herein, and that as a part of the consideration moving to said plaintiff, the defendant, W. B. Slaughter, and C. C. Slaughter "bound themselves by indorsement on said note that they would and did guarantee the payment of the said note."

The appellant, W. B. Slaughter, contends that the writs of attachment, based upon the affidavit, that the debt is due for property obtained under false pretenses, must fall, because there exists a fatal variance between the allegations of the petition and the affidavit for attachment.

The argument is that a petition upon a promissory note — in this case against the guarantor — upon merely simple allegations ex contractu, without any further allegations of fraud, the affidavit is inconsistent and contradictory to the cause of action as alleged; hence the variance.

The case of Focke et al. v. Hardeman, 67 Tex. 173, 2 S. W. 363, by Chief Justice Willie of the Supreme Court, is cited as strictly in point and controlling. In that case the suit brought on an account due to John Focke, Henry Wilkins, and Herman Lange, constituting the firm of Focke, Wilkins & Lange.

The attachment was issued upon an affidavit that the defendants were indebted to John Focke, "John" Wilkins, and Herman Lange, constituting a difference of name as to Wilkins, composing said partnership. In this state, of course, ordinarily speaking, a partnership is not an entity; its legal recognition is by virtue of the constituent members of the firm. A suit in behalf of one firm and an affidavit in garnishment that the defendants owe another firm is necessarily at variance. Justice Willie did say in that cause:

"A plaintiff cannot sue upon one cause of action and have the defendant cited upon another; much less can he obtain a writ of attachment in the suit upon a different demand. * * * If, therefore, the affidavit claims the attachment upon a demand different from that sued on, it is wholly unauthorized in the particular case."

Appellant extends this argument with the proposition that plaintiff, Morton, should have based his suit upon the ground, or at least exhibited a count in his petition, that the debt is due for property obtained by fraud.

We do not think Chief Justice Willie intended his language to apply any further than the particular case, or analogous cases where the petition, and the affidavit in attachment, exhibit a contradiction. The statute says that if the debt is due for property obtained under false pretenses, the attachment may be awarded. The petition in this case suggests that the property obtained by the defendant, Slaughter, by virtue of a debt evidenced by the guaranty, is the money Morton paid for the note. The statute does not require the action to be predicated upon false pretenses, and it might appear anomolous to compel the plaintiff to allege such fraud as a constituent of his cause of action, when he is clearly entitled to simple action of debt upon the guaranty, without setting out the fraud inducing the debt.

The case of Gray v. Steedman Bros., 63 Tex. 95, does not hold, as asserted, that "false representations must be alleged," as applicable to a controversy over an abatement of the writ. The remarks in the latter part of the opinion with reference to the question of plaintiff relying upon the fraudulent representations, as an inducement to the debt, are applicable entirely to an issue of reconvention in damages. The first assignment is overruled.

The appellant's second and third assignments of error, being cognate, will be discussed together. Plaintiff alleged the maturity of the note as December 16, 1914, and omitted J. D. Rawlings, the maker of the note, from the suit on the following alleged justification:

"Plaintiff further shows unto the court that both the said J. D. Rawlings and the said C. C. Slaughter are insolvent and the said J. D. Rawlings was insolvent at the date when this suit could have been brought at the first term of said court, and the second term of this court, after the same became due, and has been insolvent and are thereby not made parties defendant in this suit."

The testimony shows that Morton and one of his attorneys interviewed Rawlings some time in March, 1915 — probably the latter part thereof — and Rawlings at that time said he could not pay the note nor any interest upon the same, "as he had nothing to pay with." Appellant says that this testimony means money as to Rawlings' inability to pay, and not property.

Appellant demurred generally to the petition, and asserts that the same fails to show that the principal obligor upon the note was insolvent at the time of the maturity of same, and also contends as stated that the evidence of insolvency, actual or notorious, is not only insufficient to prove either condition, from the nature of the testimony, but is not addressed to the proper time; hence the guarantor, W. B. Slaughter, should be dismissed. Against all this, the appellee contends that the...