Lee v. Clay Robinson & Co.

CONNER, C. J.

So far as it is necessary to state, this suit was filed by Clay Robinson & Co., a Texas corporation, against W. E. Barrow, W. S. Barrow, Lee Brothers, a partnership composed of W. H. and John Lee, Geo. IT. Loving, and W. W. Barron. The suit was for recovery upon two promissory notes executed by W. E. Barrow for the sum of $16,-170.47 and $1,602.82, respectively, maturing June 1, 1914, and to foreclose a mortgage lien given to secure said notes, on certain cattle described in the mortgage and in the plaintiff’s petition. Plaintiff ;also prayed for an injunction and for the appointment of a receiver. The legal controversy arose out of the following state of facts:

The execution of the notes and mortgage as alleged is not controverted; the mortgage covered about 700 head of steer cattle located in Stonewall and Nolan counties, and there appears to be no dispute but that the mortgage was properly registered. It appears that of the mortgaged cattle some 160 head had been sold prior to the controversy in the present case, and the proceeds applied to the plaintiff’s indebtedness reducing it to the sum of $12,567.86. Therefore, in June, 1914, W. S. Barrow, a son of W. E. Barrow, and acting for him, sold 276 head of the mortgaged cattle to the defendants W. H. and John Lee, for the sum of $40 per head, with an agreed cut back of 10 per cent., for which the I.iees were to pay $37.50. At the time of this sale one of the Lees paid to W. S. Barrow the sum of' $150 as earnest money to be applied as part of the purchase money when the cattle were delivered. A little later and before delivery, said Lees in turn sold the cattle to Geo. F. Loving and W. W. Barron, who then and there paid to the Lees $500 as earnest money, which also was later to be applied as part of the purchase price. These parties agreed to give $42 per head for the cattle. Thereafter, W. S. Barrow, continuing to act for his father, W. E. Barrow, assisted by the Lees, gathered the 276 head of cattle involved in this controversy, and they were driven to the delivering point where W. S. Barrow delivered them to the Lees, and the Lees in turn delivered them to Loving and Barron, all consisting, substantially, but a single transaction in the way of delivery. It appears that some time after the sales to the Lees and to Loving and Barron mentioned, and before delivery of the cattle, it was discovered that the plaintiff in this suit, Olay Robinson & Co., held the mortgage here-inbefore mentioned, and about the time of the delivery one I)e Forrest, acting for and in the interest of the plaintiff company, appeared and at the times of the delivery, as shown by the jury’s findings, it was agreed that the cattle might be shipped by Loving and Barron and sold in the Ft. Worth market, and that if out of the proceeds of such sale at Ft. Worth, the $40 per head and the $37.-50 per head for the “cut back,” agreed by the Lees to be paid for the cattle, should be turned over to the plaintiff, that then the plaintiff company would release its mortgage. The shipment, accordingly, took place as contemplated, and the cattle were sold on the Ft.- Worth market.

It appears, however, that shortly before the sale of the cattle on the Ft. Worth market, the plaintiff company instituted its suit and secured the appointment of a receiver, to whom was paid the entire proceeds arising out of the final sale mentioned, and that of such proceeds the receiver paid to the plaintiff company the sum of $10,820, thus reducing the plaintiff’s debt at the time of the trial, principal, interest, arid attorney’s fees, to the sum of $3,422.55. There seems to be no question made of any of these proceedings. The real contest arises over the question of whether such payment by the receiver in accordance with the agreement made by De Forrest should, as between the parties, satisfy the plaintiff’s mortgage, thus leaving the balance of the proceeds in the Hands of the receiver available to the Lees and to Loving and Barron. The case was submitted upon special issues, and upon the jury’s answers thereto both plaintiff and the defendants moved the court for judgment. The court granted the prayer of plaintiff’s motion, entering an appropriation judgment in its favor, and the defendants have appealed.

We deem it unnecessary to set out at length the issues submitted and the jury’s findings thereon. We think it sufficient to say that the findings are such as to have required the judgment as prayed for by the defendants, unless the jury’s finding on the first issue justifies the action of the court in rendering judgment as it did. By said first issue the jury were requested to find “if there was any consideration to release the cattle described in the pleadings, and, if so, what was such consideration?” To which the jury answered, “Yes; $150 earnest money given by Lee to Barrow.” The pleadings presented the issue, and no attack is made thereon, save as to its legal effect. Appellees’ insistence is that the agreement to release the mortgage as pleaded by the defendants was without consideration, and hence inoperative, and that the payment of the $150 as earnest money by Lee to W. S. Barrow, as recited in the jury’s findings, was no such consideration as would support the release. Appellants insist, however, that the court should not have submitted the question of what constituted the consideration, if any, and that, hence, that part of the findings specifying that the consideration for the agreement to release was the $150 earnest money given by Lee to Barrow should be rejected or disregarded, and the whole finding construed merely as a finding that there was a consideration for the agreement to release.

[1 -3] We are of the opinion that appellees’ contention, as above stated, must be sustained, and that all assignments of error attacking the action of the court in rendering a judgment for Olay Robinson & Co. upon the verdict as returned must be overruled. That before the appellee company would be bound by the terms of De Forrest’s agreement to release the mortgage, it must appear that a good and sufficient consideration therefor was shown, cannot be disputed under the authorities. Indeed, appellants make no such contention, and it seems to us evident that the jury’s finding that there was a consideration amounts to no more under the circumstances than a mere finding or conclusion of law on the jury’s part. There is no finding that the $150 paid by Lee to W. S. Barrow was ever paid to or received by the plaintiff company. Indeed, it is undisputed in the evidence that it was not so received by the plaintiff company. The $150 so paid W. S. Barrow was paid before the Lees, or Loving, or Barron had knowledge of the mortgage in question, and we fail to see how it can be said that tins payment to W. S. Barrow could in any way operate as a consideration moving to Clay Robinson & Co. The finding of the jury of the specific consideration in its nature excludes an inference that there was any other consideration, and appellants have suggested no sufficient consideration that could have, or did exist. There was no plea on the part of the defendants in the action that by reason of the De Eorrest agreement to release, they did, or failed to do, anything that they otherwise would not have done, and that, therefore, Clay Robinson & Co. were es-topped from repudiating the agreement by De Forrest. Nor do we find any assignment of error to the action of the court in soliciting the jury’s answer to the question of “What was the consideration?” The action of the court in so submitting the issue must therefore be held under well-settled rules to have been approved. So that, on the whole, as stated, we think the court committed no error in rendering judgment for the plaintiff company upon the special findings of the jury considered as a whole.

What we have said we think sufficiently disposes of the ease, and it is accordingly ordered that all assignments of error be overruled, and the judgment affirmed.

null.

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