Smith v. Richardson Lumber Co.
| Decision Date | 15 October 1898 |
| Parties | SMITH et al. v. RICHARDSON LUMBER CO.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Cooke county; D. E. Barrett, Judge.
Action by T. M. Richardson Lumber Company against W. B. B. Smith and another. Judgment for plaintiff. Defendant Smith appeals. Affirmed.
Stuart & Bell, for appellant. W. E. Murphy, for appellee.
The appellant was indebted to the appellee (doing business under the name of E. A. Butt & Co.) in the principal sum of $186 for a bill of lumber. The appellant sold to one J. C. Tyree certain realty in the town of Gainesville, for which, secured by vendor's lien, Tyree executed to him a promissory note in the principal sum of $400, dated November 27, 1895, due 90 days after date, bearing interest at 10 per cent. from date, and providing for 10 per cent. on the principal and accrued interest as attorney's fees if the note should be placed in the hands of an attorney for collection, or if it should be collected by suit. Before the maturity of the note, the appellant, Smith, transferred and indorsed it in blank to the appellee, to secure the indebtedness for lumber. On February 1, 1897, the appellee brought this suit against J. C. Tyree, as principal, and W. B. B. Smith, as indorser, upon the promissory note above described. On November 11, 1897, the plaintiff recovered against both defendants a verdict and judgment in the sum of $186 principal, $20.77 interest, and $48.20 attorney's fees, making a total of $254.97, with foreclosure of the vendor's lien. From this judgment the defendant W. B. B. Smith appeals. We dispose as follows of the several assignments of error presented:
1. Among the defenses urged, the defendants pleaded that on or about May 23, 1896, the plaintiff purchased the realty in question from J. C. Tyree, and assumed payment of the note sued on. In support of this plea they introduced in evidence a deed executed and acknowledged on that date from Tyree to E. A. Butt & Co., purporting to convey the realty in question. A controverted issue of fact was whether this deed had been accepted by the plaintiff, or by E. A. Butt, acting for it. After the execution of the deed, it seems to have been left in the custody of one H. Hulen, and while there it was examined by E. A. Butt. One Dr. Hodge was permitted to testify, over the objection of the appellant, that upon examination of the deed by Butt, and of the recital therein binding E. A. Butt & Co. or the plaintiff to...
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Smith v. T. M. Richardson Lumber Co.
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