Southern Nat. Bank v. Curtis

• Decision Date: 27 June 1896
• Citation: 36 S.W. 911
• Parties: SOUTHERN NAT. BANK OF NEW YORK v. CURTIS et al.
• Court: Texas Court of Appeals

36 S.W. 911

SOUTHERN NAT. BANK OF NEW YORK v. CURTIS et al.

Court of Civil Appeals of Texas.

June 27, 1896.

Appeal from district court, Wilbarger county; G. A. Brown, Judge.

Action by the Southern National Bank of New York against W. G. Curtis and others. From the judgment rendered, plaintiff appeals. Reversed.

Conclusions of fact found by the trial court, and adopted by the court of civil appeals in its opinion:

"January 20, 1893, the defendants W. G. Curtis and A. U. Thomas executed and delivered to the plaintiff, the Southern National Bank of New York, their promissory note for $15,000, payable four months after date, at the office of said bank, in the city of New York, and at the same time deposited with said bank, as collateral security for said note, 180 shares of stock of $100 each, of the State National Bank of Vernon, Tex., and which stock was then estimated and agreed to be of value $18,000. The written contract between plaintiff and Curtis and Thomas stipulated, among other things, that, if said note was not paid at maturity, the said plaintiff bank should have the right to sell said bank stock at any broker's board, or at public or private sale, at any time after such default of payment without advertisement or notice to the said Curtis and Thomas, and with the right of said plaintiff bank to purchase said shares of stock free from any equity of redemption, and, after deducting legal costs of sale, the proceeds of said shares of stock were to be applied on said $15,000 debt, etc. Said $15,000 note was not paid, and, after the same became due, plaintiff bank offered to extend time of balance if Curtis and Thomas would pay $5,000; and by telegram of June 2d, and by letter of June 7th, both addressed to W. G. Curtis, at Vernon, defendants were informed that, unless plaintiff's proposition was complied with by June 20th, said bank stock would be sold at public auction in New York, and legal proceedings instituted for any deficiency. Defendants Curtis and Thomas failed to comply with the above mentioned proposition, or to make any other arrangements relative to said note, and on 8th August, 1893, plaintiff caused said shares of stock to be sold at public auction in New York City, when plaintiff became the purchaser at $20, paid the auctioneer $8 cost of sale, and credited defendants' note with $12, and on the 10th day of August, 1893, brought this suit to recover of the said Curtis and Thomas the balance due on said $15,000 note. At the February term, 1894, of this court, the defendants Curtis and Thomas answered said suit, charging an illegal sale of said bank stock, and a conversion thereof by plaintiff, to the damage of the said Curtis and Thomas $18,000. August 9, 1894, while suit was still pending on the issues made by the answer of Curtis and Thomas above stated, and for the purpose of settlement of this suit between them, plaintiff bank and Curtis and Thomas, through said Thomas, who was acting for both defendants, entered into an agreement that plaintiff would allow Curtis and Thomas 60 cents on the dollar for said bank stock, and they (Curtis and Thomas) were to confess judgment in plaintiff's suit on said note. This court was in session during the entire months of August and September, 1894, but was temporarily adjourned at the date of said compromise agreement, and for about one week thereafter; and said agreement was not carried into judgment because of said temporary adjournment, and because, after reconvening of said court, plaintiff had no attorney until after it abandoned said contract. Plaintiff afterwards refused to carry out said agreement, and seeks to recover the full amount of said $15,000 note, having tendered said bank stock into court for defendants Curtis and Thomas upon the payment of said note. Sixty cents on the dollar of said bank stock is, in the aggregate, $10,800. On the 8th of August, 1893, when said bank stock was sold, the State National Bank of Vernon was in the hands of the United States comptroller, having suspended business and closed its doors for want of funds to pay depositors, and at said date said bank stock had no value in the city of New York or in Vernon, Tex.

"On the issues between the plaintiff, the Southern National Bank, and H. C. Thompson, I find the following facts, viz.: On the 1st day of August, 1893, plaintiff employed the said H. C. Thompson, an attorney residing in Vernon, to institute and prosecute this suit against W. G. Curtis and A. U. Thomas, for the recovery of such balance as might remain unsatisfied after applying the proceeds from sale of the $18,000 bank stock, which sale it was understood should be made before the filing of said suit. The fee to be paid by plaintiff was agreed on at the time of said employment, viz. $100 cash and 10 per cent. on such sum as he should finally collect on said claim, exclusive of the amount which should be realized from the sale of said bank stock by plaintiff in New York. Thompson knew at the time of his employment that Curtis and Thomas would have the right to reconvene in said suit for any damages, real or imaginary, arising from the sale of said bank stock, and in fact, when Thompson accepted said employment, he anticipated that Curtis and Thomas would plead in reconvention damages by reason of the sale of said bank stock. After the defendants Curtis and Thomas filed in said cause their plea in reconvention for damages, Thompson demanded an additional fee of plaintiff, which plaintiff declined to pay. Thompson threatened to abandon the case if an additional fee was not paid, and did actually quit the case the 10th day of August, 1894, which was the next day after the agreement of compromise between plaintiff and defendants Curtis and Thomas. The compromise agreement above mentoned was effected through negotiations directly between plaintiff bank and Curtis and Thomas, and the attorney, Thompson, had no knowledge of such negotiations or agreement until after his abandonment of...