Wahl v. Ramsey

• Decision Date: 22 January 1920
• Docket Number: (No. 1040.)
• Citation: 218 S.W. 559
• Parties: WAHL v. RAMSEY et al.
• Court: Texas Court of Appeals

Page 559

218 S.W. 559

WAHL v. RAMSEY et al.

(No. 1040.)

Court of Civil Appeals of Texas. El Paso.

January 22, 1920.

Rehearing Denied February 19, 1920.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by L. O. Ramsey against the Goldoft Liquor Company, which interpleaded George W. Wahl and another. From the judgment, defendant Mrs. George W. Wahl appeals. Reversed and remanded.

M. W. Stanton and M. V. Ward, both of El Paso, for appellant.

Chas. Owen, Jno. F. Weeks, and McKenzie & Loose, all of El Paso, for appellee.

Statement of the Case.

HARPER, C. J.

On March 13, 1915, L. O. Ramsey filed his original petition in this suit against the Goldoft Liquor Company, a corporation, in which he alleged his cause of action to be suit for $1,250, agreed price of a certain saloon business, goods in stock, etc., sold by plaintiff to defendant. The Goldoft Liquor Company answered to the merits, and set up the note which is the basis of the judgment appealed from, and interpleaded appellant, Mrs. Geo. W. Wahl, and Geo. W. Wahl, the makers, prayed judgment over against them in case plaintiff should recover against the company. Defendants answered the latter pleading by general and special exceptions and general denial. Plaintiff then filed first, second, and third amended petitions, but defendants were not made parties to the original cause of action by any of these pleadings. June 18, 1918, by amicus curiæ, filed notice was given that no service had been had upon the Wahls. Whereupon plaintiff filed his fourth amended original petition August 8, 1918, making the Wahls parties and also Terrell, trustee for Goldoft Liquor Company, which had in the meantime become a bankrupt, and citation issued accordingly, shown to be served August 16, 1918. Thereafter, on March 31, 1919, the fifth amended original petition was filed upon which the case went to trial. By this petition plaintiff declared that the liquor business and goods, etc., described in the first pleadings, were, about May 28, 1914, sold to G. W. Wahl for $1,250, and that the latter —

"joined by his mother, Mrs. G. W. Wahl, made, executed, and delivered to the plaintiff for and in consideration of the purchase price of said stock of liquor their certain promissory note for the sum of $1,250, due six months after date, but inasmuch as plaintiff intended to sell said note to Goldoft Liquor Company, the note for convenience was made payable to the Goldoft Liquor Company, but the plaintiff represents that the sale of said note to Goldoft Liquor Company was never consummated, and that said company was holding said note as trustee for plaintiff, who is the owner of same, both legal and equitable; that the note draws interest at the rate of 10 per cent. per annum, and provides for 10 per cent. attorney's fees in case suit is brought on it."

In further description it is further alleged:

"The Goldoft Liquor Company, acting through its agent and duly authorized representative, transferred said note without recourse to L. O. Ramsey, and that said transfer was placed upon the back of said note in substantially the following language, `Pay to L. O. Ramsey without recourse on us,' signed Goldoft Liquor Co., by ____, its general manager."

Then follows the allegation that it had been lost. Terrell, as trustee, disclaimed any interest in the note. George W. Wahl answered by general and special exceptions, general denial, specially denied that the note was ever transferred or assigned or delivered to plaintiff. That the alleged agreement, whereby defendants became liable to plaintiff instead of the payee in the note, is barred by the statute of two-year limitation. No consideration, in that the plaintiff took possession of the license and other property and sold same to one Duran, for which there is accord and satisfaction. Mrs. G. W. Wahl adopted the pleadings of her codefendant. That there was executed a chattel mortgage to said Goldoft Liquor Company upon the property described to secure the payment of the said note. That it was primary and first security for its payment. That plaintiff appropriated said property to his own use. Wherefore she, being simply a surety on the note, is thereby discharged. The cause was submitted upon special issues, and upon the verdict judgment was entered for the amount of the note, interest, and attorney's fees, from which Mrs. G. W. Wahl appeals.

Opinion.

It is urged that it was error to permit plaintiff by fifth amended petition to change the nature of his suit as to parties and cause of action. Since the Goldoft Liquor Company and the trustee in effect disclaimed any interest in the note or amount due, and the appellants having been made parties for the limited purpose of a recovery over against them by the liquor company in case judgment was recovered against it, whilst irregular, we can see no reason why by amendment the cause of action should not be asserted against them after citation. Jolley v. Oliver, 106 S. W. 1151.

The plea of two-year limitation does not apply to the now cause of action being bottomed upon the note. The agreement to make the note payable to the Goldoft Liquor Company had the effect to make it the legal owner and holder of the note, but if Ramsey was in fact the equitable owner he could sue in his own name. Guest v. Rhine, 16 Tex. 549.

There was no election of remedies by first bringing his suit against the liquor company for the amount of the price of the business sold,...