Smith v. Pickham

• Decision Date: 15 October 1894
• Parties: SMITH v. PICKHAM et al.
• Court: Texas Court of Appeals

28 S.W. 565

SMITH v. PICKHAM et al.

Court of Civil Appeals of Texas.

October 15, 1894.

Appeal from district court, Throckmorton county; C. P. Woodruff, Judge.

Action by Solon Smith against W. H. Pickham and others on a promissory note. From a judgment quashing the writ of attachment issued by him, plaintiff appeals. Reversed.

W. T. Andrews and Carrigan & Hughes, for appellant. Holman & Montgomery, for appellees.

TARLTON, C. J.

The appellant, on September 9, 1892, brought this suit against W. H. Pickham, J. M. Goff, Tom J. Goff, and B. C. Miller. The plaintiff declared upon the following promissory note: "Throckmorton, Texas, July 1st, 1891. $2,604. Two years after date, waiving grace and protest, we, or either of us, jointly and severally promise to pay to the order of W. H. Pickham, at the banking house of W. H. Pickham, in Throckmorton, Texas, the sum of twenty-six hundred and four dollars, value received, with 12 per cent. interest per annum thereon from date until paid; and, in case this note is placed in the hands of attorney for collection, we agree to pay 10 per cent. additional on the amount as attorney's fees. Tom J. Goff. B. C. Miller. J. M. Goff." The note was indorsed by the payee, W. H. Pickham. At the time of filing the suit, the plaintiff caused the issuance of an attachment for the principal of the note, together with interest and attorney's fees, as therein stipulated; stating in the affidavit, among other things, that the "debt is not due, and will not mature until July 1, 1893," and "that said defendants have disposed of their property in part, with intent to defraud their creditors, * * * and that the plaintiff will probably lose his debt unless such attachment is issued." In his petition the plaintiff, among other matters, alleged that "plaintiff has placed said note in the hands of W. T. Andrews, an attorney at law, for collection; that he was compelled to do so, in order to collect same." On motion of the defendants, the court quashed the writ of attachment because: (1) The plaintiff "has included in his alleged cause of action and attachment a sum equal to ten per cent. on the amount of the said note, in addition thereto, as attorney's fee, when in truth and in fact said attorney's fee is not now a debt owing by the defendants, but only a possible debt, and will not become a debt until default is made in the payment of said note at maturity, and same is then placed in the hands of an attorney for collection." (2) "Plaintiff sues the defendant W. H. Pickham on said note, and causes an attachment to be issued against said defendant, when it appears from the papers in the case that said Pickham is merely an indorser upon said note; thereby showing that said note does not constitute a present valid and subsisting indebtedness of the said Pickham, but only a possibility that same may become an indebtedness of the said Pickham in the event same is not paid at maturity, and that the holder thereof then takes the necessary legal steps to fix the liability of said indorser." We are of opinion that the court erred in both the respects named.

1. The necessity for the attachment having arisen, the writ could issue before maturity of the debt or demand. Sayles' Civ. St. art. 155. According to the terms of the note, the accrual of the demand for attorney's fees did not depend upon the maturity of the obligation, but upon the condition that "this note is placed in the hands of an attorney for collection." Under the allegations of the petition, this contingency, springing from necessity, had arisen. Whatever may be the case in other jurisdictions, it is well settled in this state that a stipulation for attorney's fees affects neither the validity nor the negotiability of the note. On the happening...