Smith v. T. M. Richardson Lumber Co.
| Decision Date | 13 February 1899 |
| Parties | SMITH v. T. M. RICHARDSON LUMBER CO. |
| Court | Texas Supreme Court |
Action by T. M. Richardson Lumber Company against W. B. B. Smith and another. From a judgment for plaintiff, which was affirmed by the court of civil appeals (47 S. W. 386), and on rehearing (47 S. W. 753), defendant Smith brings error. Reversed.
Stuart & Bell, for plaintiff in error. W. E. Murphy, for defendant in error.
Smith was indebted to the lumber company in the sum of $186 for a little lumber sold him, to secure which he indorsed to the lumber company a note signed by J. C. Tyree, payable to W. B. B. Smith, 90 days after date, dated November 27, 1895, for the sum of $400, with 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. The note was given for real estate situated in Cooke county, and reserved a vendor's lien thereon. It was indorsed by Smith to the lumber company before its maturity. The lumber company instituted this suit against Smith and Tyree to foreclose the lien upon the land, on February 1, 1897, in the district court of Cooke county. The defendants, among other things, pleaded that the lumber company had purchased the real estate from J. C. Tyree, and had assumed the payment of the note sued on; also, that the suit had not been brought to the first or second term of the court after the maturity thereof, whereby Smith claimed to be released, to which plea the plaintiff replied that at the time the note was indorsed to it, and ever since, J. C. Tyree had been, and was, notoriously insolvent, and that his residence was unknown to the plaintiff. The lumber company recovered judgment against Smith and Tyree for $186 principal, $20.77 interest, and $48.20 attorney's fees, a total of $254.97, with foreclosure of the vendor's lien.
Upon the trial, the court permitted one Dr. Hodge to testify, over the objection of appellant, that upon examination of the deed by Butt, and of the recitals therein binding E. A. Butt & Co. or the plaintiff, the lumber company, to assume the payment of the note, Butt stated to Hodge that he would not accept the deed. The admission of this testimony was duly excepted to and assigned as error. The judge instructed the jury, in substance, to find for the plaintiff, the lumber company, the amount of its account and interest, with $48.20 attorney's fees, unless they should find for the defendants under the second section of the charge. The second s...
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...any waiver by defendant of formalities requisite to fixing his liability, is bad on general demurrer. In the case of Smith v. Richardson Lbr. Co., 92 Tex. 448, 49 S. W. 574, Judge Brown, speaking for the court, "If the plaintiff's petition had not contained the allegation that J. C. Tyree w......
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