Turner v. Parker
| Decision Date | 07 March 1928 |
| Docket Number | (No. 3007.) |
| Citation | 4 S.W.2d 639 |
| Parties | TURNER v. PARKER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; W. W. Cook, Judge.
Action by James E. Parker against J. H. Turner. Judgment for plaintiff, and defendant appeals. Affirmed.
J. S. Dickey and Taylor, Muse & Taylor, all of Wichita Falls, for appellant.
Bullington, Boone, Humphrey & King, of Wichita Falls, for appellee.
The appellee, Parker, sued the appellant, Turner, upon a promissory note made by the latter and delivered to the former in the sum of $4,600. The original petition prays for judgment for the amount of the principal, interest, and attorney's fees, according to the tenor of the note.
Turner answered by general demurrer, general denial, and, by way of special answer, alleged the terms of a contract made by appellant and one May with appellee, wherein, as consideration for an assignment of an oil and gas lease, the said May and appellant obligated themselves to drill a well 1,650 feet deep for the appellee at any location which he might select in Archer or Wichita county, the appellant claiming that the contract did not speak the true agreement between the parties, and for that reason, the appellant and the said May failed to drill the well under the contract. The appellant further alleged that thereafter, on the 10th of March, the appellee procured him to execute the note sued on, representing to the appellant that appellee needed money and wanted the note for the purpose of enabling him to procure a loan at the bank, expressly agreeing that the note was not to be paid by the appellant, and was not in consideration of any debt due by the appellant to appellee on the contract; that, therefore, the note was without consideration. Appellant then prayed that the note and the contract for digging the well should both be canceled, set aside, and held for naught.
In reply to the appellant's answer, the appellee, by supplemental petition, pleaded a general demurrer, a general denial, and specially alleged that he entered into the contract with appellee and May, as set forth in appellant's answer, but denied that the contract was entered into through mutual mistake, and further alleged that on the 10th day of February, 1926, the appellee notified appellant and May, giving the location where he desired the well to be drilled; that on the 10th of March, 1926, he again requested appellant to proceed with drilling the well, and that the appellant then agreed, in lieu of performance of the contract, that the costs of drilling said well to him and May would be the sum of $4,600, and executed the note sued on in satisfaction of the debt already incurred. He further specially denied that the note was not executed in good faith and for a valuable consideration, and specially denied that the note was delivered to appellee for the sole and only purpose of enabling him to borrow money, but on the contrary the note was delivered in settlement of the account due the appellee by the appellant, by virtue of the breach of the contract set forth by appellant in his answer. The appellee pleaded in the alternative that if the note was given to appellee by appellant without consideration, that under the terms of the contract, as set forth in appellant's answer, appellant was bound and obligated to drill the well for appellee; that demand for drilling the same had been made and refused by appellant, to appellee's damage in the sum of $5,000, and prayed for judgment on the note, or in the alternative for judgment in the sum of $5,000 damages for breach of the contract.
The case was submitted to a jury upon special issues; the findings being in effect as follows: That plaintiff and defendant agreed that the note sued upon by plaintiff would be in satisfaction of the contract made by May and Turner to Parker, and that Turner did not deliver the note in question to Parker as an accommodation note to be used by the latter as collateral security for a loan with the understanding that it should be thereafter returned to Turner. The jury further found that the reasonable cost...
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