Underwood v. Coolgrove

• Decision Date: 20 March 1883
• Docket Number: Case No. 1326.
• Citation: Underwood v. Coolgrove, 59 Tex. 164 (Tex. 1883)
• Parties: AMMON UNDERWOOD v. MAGGIE L. COOLGROVE.
• Court: Texas Supreme Court

59 Tex. 164

AMMON UNDERWOOD

v.MAGGIE L. COOLGROVE.

Case No. 1326.

Supreme Court of Texas.

Mar. 20, 1883.

APPEAL from Brazoria. Tried below before the Hon. Wm. H. Burkhart.

Suit brought on the 19th of April, 1879, by appellee against Ammon Underwood and the firm of Mitchell, Calder & Davidson, composed of John C. Mitchell, Robert J. Calder and Wm. L. Davidson, defendants below, for the recovery of one hundred and twenty-nine bonds, or the value thereof, issued by the county of Brazoria, payable to bearer, with coupons attached, in aid of the H., T. & B. Railway Co., which, the plaintiff alleged, belonged to her and was unlawfully withheld from her by the defendants. The cause was tried by a jury at the spring term, 1880, of the court, and resulted in a verdict and judgment for the plaintiff.

The appellee alleged that one U. C. Coolgrove became the owner of one hundred and twenty-nine of the bonds with coupons attached; that Coolgrove afterwards left the bonds with the appellant for safe keeping; that thereafter said Coolgrove, for value, transferred and delivered the bonds and coupons to the appellee; that about March 1, 1878, the county commissioners' court of Brazoria county effected a decree of compromise in respect of all the bonds, whereby the holders thereof were to surrender them and take in place thereof new bonds for the principal, which new bonds were accordingly issued by the county March 1, 1878, payable to bearer in twenty-five years; that the old one hundred and twenty-nine bonds came within the terms of the compromise decree, and that appellant surrendered them and took in place thereof the new bonds with coupons attached thereto, the principal whereof amounted to $12,900, which was their value, and the attached coupons were worth either $8 or $40--as the same may be attached to $100 or $500 bonds,--the numbers whereof were unknown to plaintiff.

That the appellant, after getting possession of said new bonds, refused, though often requested, to deliver them to the appellee; that thereupon she employed the law firm of Mitchell, Calder & Davidson to recover the same for her for a fee of ten per cent. That by a fraudulent combination between said law firm and appellant they made some sort of division of said new bonds unknown to her, without her authority or consent, and in disregard of her rights. That said new bonds and attached coupons were still her propetry, and that Underwood and Mitchell, Calder & Davidson refused to deliver them, though often requested so to do, to her damage $15,000, and she prayed judgment against them for the new bonds and coupons, or for their value, and for general relief.

Mitchell, Calder & Davidson answered May 20, 1879, by general denial, and specially that they were never employed by the appellee and had no knowledge of appellee's interest in the bonds, but were employed by her father, U. C. Coolgrove, to recover the bonds, which he claimed, for a fee of one-half of what might be recovered, either by suit or compromise, which they were authorized to make; that in good faith they compromised the claim with Underwood, receiving $4,500 in new bonds, although they had been instructed to take a less amount in settlement and compromise of the claim, and of which they paid over to U. C. Coolgrove $2,300, retaining the balance as their fee.

A. Underwood denied that the appellee ever was the owner of the bonds sued for, or was ever in possession thereof or entitled to the possession; that in 1859, U. C. Coolgrove, father of appellee, in order to procure advances from appellant to enable said Coolgrove to carry on his plantation and perform certain contracts he had made with the railway company, authorized him to receive from the H.?? T. & B. Railway Co. all bonds that the company might be owing to him on completion of his contracts with them, and to hold the same as collateral security for the advances; that in pursuance to this agreement appellant obtained from the company one hundred and twenty-eight Brazoria county bonds and some detached coupons; that thereafter, on settlement with U. C. Coolgrove, he owed appellant $812.55, for which he gave his note on 20th August, 1866; that thereafter, on 15th of July, 1867, U. C. Coolgrove transferred and conveyed said bonds to defendant as collateral to secure said note; that on the 20th of August, 1867, appellant being indebted to Mrs. C. J. Borden, transferred the said (Coolgrove) note and bonds attached thereto in part payment of his debt to her; that neither the appellant nor Mrs. B. ever had any notice of any claim or right set up or claimed by appellee to the bonds; that from the 20th of August, 1867, the note and bonds had been the property of the estate of Mrs. Borden, and that since that time he had not owned or held the bonds, except as the agent of Mrs. C. J. Borden, or as her executor; that on the 3d May, 1878, U. C. Coolgrove brought a suit, No. 3663, in district court of Brazoria county, in his own name, to recover the bonds, of which the appellee well knew, but neither intervened therein or gave any notice of any interest claimed thereby to the appellant; that the suit was compromised by the attorneys, duly authorized, of which she knew, and he pleaded the fact as an estoppel; that he paid over to M., C. & D., who were then the authorized attorneys and in possession of the receipt of appellant, given to U. C. C. originally for the said old bonds, and that they entered ““satisfaction” thereon and delivered same to appellant; that the attorneys had authority to make the settlement and pleaded the same in bar. He also pleaded the statute of limitations in bar.

On the 28th of May, 1880, A. Underwood, as executor of the estate of Mrs. C. J. Borden, filed petition of intervention in his representative capacity, in which it is alleged that in August, 1867, he sold, for value, to Mrs. Borden, the note of U. C. Coolgrove, and the bonds were given to secure same; that she died in July, 1875, and that this defendant was executor of her last will, and that said note and bonds were the property of her said estate by virtue of the sale thereof, etc.

The appellee moved to strike out the intervention because it introduced new parties and new matters, and sought to make new issues of facts which ought to have been done before, if at all, and that the transaction set up between them was irrelevant to this suit. The original answer of the appellant, filed May 22, 1879, denied his liability to any one except to Mrs. C. J. Borden, of whose will he was executor, and to whose estate the bonds belonged by sale, for valuable consideration, to her by appellant, made in 1868; that she held said bonds as her property till her death in 1875; that he was executor of her will, and in that capacity a necessary party, and asked that he be made such.

The court granted the leave to A. Underwood, as executor of the will of Mrs. C. J. Borden, to intervene for the protection of the rights of her estate, but sustained the motion to strike out the intervention.

It was proved that the old bonds were held by the appellant in accordance with the following writings, contemporaneously executed:

“I, by these presents, do transfer and assign to A. Underwood all my right, title and interest in and to one hundred and twenty-eight bonds of $100 each, and seventy-five coupons of $8 each, detached from Brazoria county bonds, said bonds being the same that was placed in the hands of A. Underwood by me, as collateral security, in 1860, and for all of which bonds I have received payment in full.

+--------------------------+
                ¦(Signed)¦U. C. COOLGROVE. ¦
                +--------------------------+
                

COLUMBIA, July 15, 1867.”

“I have this day taken from U. C. Coolgrove, Esq., one hundred and twenty-eight Brazoria county bonds of $100 each, and seventy-five coupons, detached from Brazoria county bonds. Said coupons are for $8 each. Said bonds and coupons have been paid to me to liquidate a note of hand drawn by U. C. Coolgrove in favor of the undersigned for $812.55, dated August 20, 1866, and due one day after date, and drawing ten per cent. interest from date. Also to secure me, the undersigned, for a note of $597, favor of J. W. Brooks, receiver, dated January 4, 1859, and due twelve months from date. Also to secure me, the said Underwood, against the payment of note signed jointly or as security in favor of the administrator of the estate of Clark, of Wharton county, for $5,000, given for negroes purchased by said Coolgrove from said Clark's estate, and for all of these and all other liabilities said Underwood is or may hereafter be under for said U. C. Coolgrove, said U. C. Coolgrove has transferred to said Underwood said bonds, and said Underwood, in case he has said liabilities forced upon him to pay, is to make use of said bonds to best advantage, accounting to said Coolgrove for what he realizes therefor; but said Coolgrove has the right to reclaim all the said bonds, etc., on the liquidation in full or the discharge of said Underwood from the above described liabilities, but said Underwood is to exercise full rights and ownership and to dispose of said bonds to...