Will A. Watkin Music Co. v. Basham

• Decision Date: 14 December 1907
• Citation: 106 S.W. 734
• Parties: WILL A. WATKIN MUSIC CO. v. BASHAM.
• Court: Texas Court of Appeals

106 S.W. 734

WILL A. WATKIN MUSIC CO. v. BASHAM.

Court of Civil Appeals of Texas.

December 14, 1907.

On Rehearing, January 11, 1908.

Appeal from Dallas County Court; H. F. Lively, Judge.

Action by the Will A. Watkin Music Company against T. J. Basham. From a judgment for plaintiff for less than the relief demanded, it appeals. Reversed and rendered.

This suit was brought in the county court of Dallas county, Tex., by appellant, the Will A. Watkin Music Company, against appellee, T. J. Basham, to recover upon 12 promissory notes, executed on the 18th day of April, 1906, by appellee and one Mrs. Nina Shinn, and made payable to the appellant at Dallas, Tex., 11 of which are for the sum of $30 each, and 1 for the sum of $20, and to foreclose a chattel mortgage upon a certain piano for the purchase price of which said notes were given. Appellee by first amended original answer pleaded that appellant, without his knowledge or consent, had released Mrs. Nina Shinn, who had also signed the notes; that he was surety on the said notes and not principal, and that the release of Mrs. Shinn released him of all liability upon the notes; and further pleaded in the alternative that, if he was not a surety, he was a joint maker, praying that, in the event the court found he was a joint maker, he be held liable for one-half of the amount of notes. Appellant by first supplemental petition pleaded that Mrs. Shinn had never been liable upon the notes; that it was understood by all the parties at the time of execution of notes that appellee alone was to be looked to for payment of same; that, after the execution of notes and while the piano in question was in the possession of Mrs. Shinn, appellee had promised appellant to pay the full amount of the notes, if the piano was delivered to him; that the release given by plaintiff to Mrs. Shinn in no way released appellee of his liability on the notes, as all of its rights against appellee were expressly reserved therein; that after obtaining the piano from Mrs. Shinn it had tendered the same to appellee, but that the latter refused to receive the piano or pay the notes, or any part of them. Appellant tendered the piano to appellee at the trial. The case was tried before the court on the 20th day of December, 1906, without the intervention of a jury, and judgment rendered in favor of plaintiff for one-half of the amount of the notes, principal, interest, and attorney's fees, $203.44, with foreclosure of lien upon piano. To which judgment plaintiff excepted, and perfected an appeal. The facts appear in the opinion.

Jno. M. McCoy and G. D. Hunt, for appellant. Guynes & Golgin, for appellee.

BOOKHOUT, J. (after stating the facts as above).

On the 18th of April, 1905, T. J. Basham and Mrs. Nina Shinn executed and delivered to the Will A. Watkin Music Company, in the city of Houston, 11 promissory notes for $30 each and 1 for $20. Said notes drew 6 per cent. per annum interest to maturity and 10 per cent. after maturity, and also 10 per cent. additional for attorney's fees, if placed in the hands of an attorney for collection. Said notes retained a lien on one Watkin Art Style Piano, No. 324,050, and further provided that the failure to pay one or either of said notes, when the same became due, matured the unpaid notes, and that said Will A. Watkin Music Company should have the right to take said piano on the failure of the makers to pay said notes, or either of them. These notes with the check of Basham for $25 were given in payment of the piano upon which the lien was retained. They were the joint obligation of T. J. Basham and Mrs. Nina Shinn. When the first note became due and payable on July 18, 1906, it was presented to both T. J. Basham and Mrs. Nina Shinn for payment, and payment was refused by each of them, and plaintiff then declared each and all of said notes due and payable. On August 11, 1906, Will A. Watkin Music Company, plaintiff, through its agent E. I. Conkling, secured possession of said piano from Mrs. Nina Shinn by and through the execution of the following instrument, to wit: "Houston, Texas, ...