Tsesmelis v. Sinton State Bank

• Decision Date: 26 October 1932
• Docket Number: No. 1369-5953.,1369-5953.
• Citation: 53 S.W.2d 461
• Parties: TSESMELIS v. SINTON STATE BANK et al.
• Court: Texas Supreme Court

53 S.W.2d 461

TSESMELIS v. SINTON STATE BANK et al.

No. 1369-5953.

Commission of Appeals of Texas, Section B.

October 26, 1932.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by the Sinton State Bank against Gust Tsesmelis, who filed a cross-action against plaintiff and others. The cross-action was dismissed, and a judgment for plaintiff having

been affirmed by the Court of Civil Appeals [35 S.W.(2d) 451], defendant brings error.

Judgments of the District Court and Court of Civil Appeals affirmed.

W. B. Moss, of Sinton, and Lloyd & Lloyd, of Alice, for plaintiff in error.

Jas. G. Cook, of Sinton, for defendants in error.

RYAN, J.

This suit was filed on January 7, 1930, by the Sinton State Bank against Gust Tsesmelis to recover upon a promissory note for $725 with 10 per cent. interest from its date and the usual 10 per cent. attorney's fees.

Simultaneously with the filing of the suit, a writ of attachment, predicated upon affidavit and bond therefor, was issued and levied upon a lot in Sinton, Tex., and a farm near Sinton, belonging to Tsesmelis.

The affidavit for attachment was made by J. F. Odem, as agent for the bank, and the bond was signed, "Sinton State Bank of Sinton, Texas, Principal, by J. F. Odem, V. P. & Agt.," and "J. F. Odem, Fred Johnson, Sureties."

The defense was that the obligation had been extended and was not then due—that the suit was prematurely brought.

Quashal of the attachment proceedings was prayed on the ground that because of such extension there was nothing then due and therefore the affidavit was false and no ground for the attachment existed.

Defendant below also by cross-action claimed $12,500 actual damages and $5,000 exemplary damages based upon the alleged wrongful issuance and levy of the attachment and for the wrongful publication and circulation of the affidavit therefor, the contents of which were alleged to be libelous.

The cross-action asserted against the bank and Odem and Johnson (sureties on the attachment bond) was based upon their several and individual acts in connection with the institution of the suit, the procuring of the writ of attachment and publication of the alleged libelous affidavit, as well as their liability by reason of their having signed the attachment bond.

The trial court sustained exceptions to and dismissed the cross-action upon the defendant's refusal to amend. A jury chosen to hear the evidence submitted on the plea in abatement —that the suit was prematurely brought —was peremptorily instructed to return a verdict against defendant thereon.

The motion to quash the attachment proceedings was overruled, and final judgment was rendered on March 28, 1930, in favor of the bank for the sum of $748.32 principal and interest due on the note in controversy, and the further sum of $74.83 attorney's fees, aggregating the sum of $823.15, with interest from date of judgment at the rate of 10 per cent. per annum and costs of suit, and foreclosure of the attachment lien.

Said judgment was affirmed by the Court of Civil Appeals. 35 S.W.(2d) 451.

Opinion.

First. To support a contention that the payment of a negotiable instrument has been extended, there must exist all the elements essential to the execution of a contract (6 Tex. Jur. p. 826), and the agreement for the extension must be for a definite time and mutually bind the parties, payor and payee, the one to forbear suit during the time of extension, and the other his right to pay the debt before the end of that time. Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128; Guerguin v. Boone, 33 Tex. Civ. App. 622, 77 S. W. 630.

In Austin Real Estate & Abstract Co. v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430, it was said: "Here the creditor agrees to extend for one week, and the debtor agrees to pay within the week. He does not agree that he will not pay until the end of the week, or that in case he does pay he will pay interest for the entire period of the extension. Hence there was no consideration for the promise of the creditor. * * * It was the right of the company to pay at any time, notwithstanding Fain's promise, and hence there was no consideration to support that promise."

The basis of the claim for the alleged extension is a conversation with Odem, vice president of the bank, and a letter from him to plaintiff in error; a portion of the latter's testimony is as follows:

"That is the note I executed. It shows to have been made on August 15, 1929, and matured ninety days after date—on November 15, 1929. I had a conversation with Mr. Odem about this note after it matured. On the second day of December, 1929, I came to Sinton to pay the rent on a building I had rented from Mr. Odem and I gave him a check for $75.00 that paid the December rent, and he took the check and I said, `I've got a note here that is due and I want to pay the interest and extend it a little while,' and he went and got the note and said, `Well, we are not going to extend this note any longer because you are doing business with another bank here in town.' I told him I couldn't pay him right then because Mr. Sparks (President of the bank I am doing business with) was gone right then, and I would have to wait until he came back, that he wouldn't be back before the tenth, and when he came back I would see him and make arrangements and get the money and pay off the note, and he said, `All right, you can pay the interest on this note and I will give you ten or fifteen days to get the money.' So I didn't come back any more and on the 13th or 14th of December I got a letter from Mr. Odem. * * * I tore this letter up. A day or two later I wrote them a letter and told them I couldn't get the money, that I would come to Sinton and see Mr. Sparks, and told him that I would pay him $100.00 in thirty days, $100.00 in sixty days, and $100.00 in ninety days. I got a letter from Mr. Odem about the 18th or 20th of the month."

Said letter, dated December 18, 1929, is as follows:

"With reference to your note of $725.00, since you state that you are unable to obtain credit we will expect a payment of $100.00 at once and a similar amount thirty and sixty and ninety days. We do not care to extend the old note, but will hold the time of payment in abeyance as above stated.

                   "Yours very truly
                            "J. F. Odem, Vice-President."
                

"A day or two after I got this letter I wrote the bank and told them I would pay the first $100.00 on January 1, 1930."

Several days later a check for $100 on the Commercial State Bank of Sinton, signed by Gust Tsesmelis and Jack Lymbery, was mailed to Mr. Odem. The check bore date January 6, 1930, and the postal mark on the envelope is stamped 6 p. m., January 7th. This check was received in the morning mail on January 8th and immediately returned to Tsesmelis in the following communication:

"We are in receipt today your check on the Commercial State Bank of Sinton, dated January 6, 1930, and payable to the order of J. F. Odem for $100.00, with the following notation on the check: `For first note.' We are returning herewith your check for the reason that your note has been placed in the hands of our attorney for collection on which attorney's fees have accrued. You will therefore communicate with Mr. Jas. G. Cook, who is attending to the collection of your note for us.

                    "Yours very truly
                             "J. F. Odem, Vice-President."
                

The above testimony shows a mere forbearance or indulgence on the creditor's part; the negotiations eventuated in no agreement of grace for any definite period of time, and therefore no valid contract of extension resulted. Kirby v. Am. State Bank (Tex. Com. App.) 18 S.W.(2d) 599, 63 A. L. R. 1528; International Shoe Co. v. Kaufman (Tex. Civ. App.) 270 S. W. 1109.

Tsesmelis testified also that he would have the right to pay the debt at any time; this of itself is fatal to the claim of extension. Dickson v. Kilgore State Bank (Tex. Com. App.) 257 S. W. 867; Ellerd v. Ferguson (Tex. Civ. App.) 218 S. W. 605; Neyland v. Lanier (Tex. Civ. App.) 273 S. W. 1022.

No valid extension of the note having been had, it was past due when the suit was filed. The note provided for payment of an additional 10 per cent. thereon, if placed in the hands of an attorney for collection, to be paid by the maker. No issue was made of its reasonableness and judgment was properly rendered for such attorney's fee. First Nat'l Bank of Eagle Lake v. Robinson, 104 Tex. 166, 135 S. W. 372; Lanier v. Jones, 104 Tex. 247, 136 S. W. 255; Brannin v. Richardson, 108 Tex. 112, 185 S. W. 562.

Second. Whether the matters stated in the affidavit for attachment be true, or not (they complying with the statutory requirements), can be reached only by plea and not by motion to quash.

If a valid extension of the note had been shown and therefore the suit had been prematurely brought, the attachment proceedings would of course fall, but as said in Dwyer v. Testard, 65 Tex. 432, "the validity of the writ [of attachment] depends, not upon the truth of the facts stated in the affidavit, but upon the fact that they are so stated." To the same effect is the holding in Gimbel v. Gomprecht, 89 Tex. 497, 35 S. W. 470, 472, where it was said: "When the affidavit made by the plaintiff for attachment complies with the statute, and the writ is issued and levied, the lien of the attachment attaches to the property, and the court must foreclose it, although the allegations of the affidavit may not be true in fact."

The lien was properly foreclosed.

The defendant's answer alleged: (a) A general denial and specially that the suit was prematurely brought because of a claimed extension in time of payment, which contention has been disposed of adversely to him, as above stated; (b) by way of cross-action, that the affidavit for attachment is false and "not being content with filing such affidavit plaintiff and the sureties on his bond told other and divers persons of its...