Washington v. First Nat'l Bank of Denton
| Decision Date | 11 April 1885 |
| Docket Number | Case No. 5273. |
| Parties | W. E. WASHINGTON ET AL. v. FIRST NATIONAL BANK OF DENTON. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Denton. Tried below before the Hon. W. J. Austin, Special Judge.
Suit by appellee against Washington, Cloud, and Sacra, as the makers of a note, and against Rollins as guarantor.
The plaintiff in its pleadings alleged that the defendant, R. S. Rollins, guarantied the payment of the said note to plaintiff, by making the following written indorsement upon the back of said note, to wit: “Payment guarante.' ”
The indorsement upon back of note sued upon and introduced in evidence was as follows: “Payment guaranted.' ”
After the jury had retired under the charge of the court, they returned into court the following as their verdict, to wit:
“We, the jury, find for the plaintiff as follows: $4,000 principal, $124 interest; $400 attorneys' fees. We further find that J. W. Sacra, Isaac Cloud and R. S. Rollins are sureties.
N. S. CLARDY, Foreman.”
When the above verdict was handed to the court the judge announced that the same was informal and not responsive to the charge of the court, and called the plaintiff's attorney, E. C. Smith, handing him the verdict, who, under the direction of the court, wrote out the following verdict: Which verdict as written out under direction of the court was then handed to the jury, who were requested by the court to retire and further consider of their verdict. The jury retired, and after some deliberation returned into court the verdict as written out under the direction of the court, signed by the foreman, which was as follows:
“We, the jury, find for the plaintiff, and assess its damage at $4,524. We further find that J. W. Sacra and Isaac Cloud are sureties.
N. S. CLARDY, Foreman.”
The court, learning that some of the jury were dissatisfied with their verdict, requested them to retire again and consider of their verdict. The jury then retired and returned again into court as their verdict the following verdict:
“We, the jury, find for the plaintiff, and assess its damages at $4,524. We further find that J. W. Sacra and Isaac Cloud are sureties.
N. S. CLARDY, Foreman.”
The last verdict the court caused to be read out by the clerk, and had the jury polled, and they declared the same to be their verdict, which was received, and jury discharged.
Potter & Hughes, for appellants, on variance, cited: Brown v. Martin, 19 Tex., 343;Shipman v. Fulcrod, 42 Tex., 248;Hunt v. Wright, 13 Tex., 549.
On the verdict, they cited: R. S., arts. 1009, 1317.
On the question of interest on attorneys' fees, they cited: R. S., arts. 2976, 2980.
E. C. Smith, for appellee, on variance, cited: Hays v. Samuels, 55 Tex., 560;McClelland v. Smith, 3 Tex., 210;Smith v. Shinn, 58 Tex., 1.
On the sufficiency of the verdict, he cited: Frederick v. Hamilton, 38 Tex., 336, 337;McKean v. Paschal, 15 Tex., 37.
On the question of interest, he cited: R. S., 2980; Coles v. Kelsey, 13 Tex., 75-6;Jewett v. Thompson, 8 Tex., 437.
The variance between the indorsement pleaded and that found on the note introduced in evidence was very slight, and not at all material. The misdescription was not such as tended to mislead or surprise the adverse party, and hence it was properly disregarded by the court. McClelland v. Smith, 3 Tex., 210;Hays v. Samuels, 55 Tex., 560.
As to the verdict, it is sufficient to say that, if the court had directed the jury to find the exact verdict which they finally rendered in the cause, it would not have been error. There was no conflict in the testimony, and no other finding but the one finally adopted, or its equivalent, was authorized by the facts. The judge would have been authorized to direct the jury to return such a verdict, and it can be no objection to it that he had the proper verdict put in writing, no matter what agent he used for that purpose, if the jury afterwards adopted it as their own. This they did after due consultation, and there is no reason why...
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