Kemp v. Westbrook

ON REHEARING

In his motion for rehearing appellant says that in asking for an injunction against appellant, appellee himself pled his own execution of a $15,000 note without pleading any credits or any showing of a lesser amount due than the full $15,000 named in the note. Then later he directed American Title Company to pay “the entire sum owing by virtue of the terms of the note”, yet only the sum of $13,913.01 was actually tendered to appellant. This raises a fact issue, according to appellant. The record also discloses that appellant in his unsworn cross-action asking foreclosure of his deed of trust lien also pled the $15,000 without alleging any credits or lesser amount due.

However in appellee’s First Amended Supplemental Petition answering appellant’s cross-action appellee does plead a lesser amount due. We quote from appel-lee’s sworn pleading:

“Plaintiff would show the court that a hearing was held in this matter by this court on December 15th, 1960, at which time defendant admitted that only $13,650.86 had been drawn by plaintiff on his note executed to defendant KEMP in the sum of $15,000.00, and that only that sum plus interest was due. * * * That two days later plaintiff, through his agent, American Title Company of Dallas, sent the said sum plus interest to defendant KEMP which was received in due course of business on December 20, 1960, and that in the course of business KEMP LUMBER COMPANY cashed said sum on December 30, 1960, and has had the use and benefit of said sum of money since prior to the maturity of the note in question. That it is the custom and usage of the trade, where a lumber company is involved in interim financing, as was the case here, that the only sum to be charged to the payor of the note is the amount allowed to be drawn on said note by the financial institution or lumber company advancing said money, plus agreed interest. That here plaintiff borrowed only $13,650.00 on said $15,000.00 note and that the title company check of American Title Company duly cashed by said defendant KEMP LUMBER COMPANY was full payment for all sums advanced by said defendant to said plaintiff.
“Plaintiff would show in the alternative, in the event that his plea of payment is not sufficient in law, that there is a failure of consideration on the part of defendant since plaintiff did not receive the agreed sum of $15,000.00 under the note and deed of trust executed by him.
“Plaintiff would show the court that in the alternative, that in the event his plea of payment is not sufficient under law that he has set-off between the sum of $13,650.00 and $15,000.00 for sums-which he did not draw which under the terms of the agreement under the note he was entitled to from defendant.
“Plaintiff executed the deed of trust to defendant in connection with the $15,000.00 note and although defendant has accepted and used plaintiff’s-money in payment thereof, he refused' and still refuses to execute a release of lien and plaintiff prays that this court order defendant to execute the release and return same to the American Title Company for recordation.”

We of course may not and shall' not look to the pleadings as evidence of the truth of their own allegations. We quote from the pleadings merely to show that appellee pled defenses which entitled him to adduce evidence of an amount due less than the $15,000 named in the note.

It is undisputed that appellant advanced and loaned to appellee only the sum of *896$13,650.86, not the full amount of $15,000 called for by the note. Appellee so swore in a supporting affidavit, dated March 14, 1961 and drawn in the form prescribed by Rule 166-A(e) Texas Rules Civ. Procedure. Appellant nowhere denies or contradicts said sworn statement. In fact on the second page of his brief on appeal appellant admits the truth of appellee’s statement. We quote from appellant's brief:

“The transaction was to finance Westbrook in building a house for sale, and it is undisputed that Westbrook only drew $13,650.86, * *

In his supporting affidavit appellee further swore as follows:

“That when I executed the note and deed of trust to KEMP LUMBER COMPANY in the sum of $15,000.00 for interim financing in connection with the construction of a house on the lot described in my previous affidavit, that it was my agreement that all I would owe of the $15,000.00 to CHARLES W. KEMP, d/b/a KEMP LUMBER COMPANY, cross-plaintiff in this action, was the sum of money that I actually borrowed from him plus interest, not to exceed $15,-000.00. That during the period of construction from time to time I borrowed certain sums of money that the total amount borrowed was $13,650.85, * * and that I instructed said title company to pay said sum plus any additional interest owed to fully pay off all sums borrowed as agreed from CHARLES W. KEMP.”

Appellant later on March 28, 1961, filed a controverting affidavit but he did not deny the above quoted averments in appel-lee’s affidavit. Having failed to controvert appellee’s affidavit in this particular, appel-lee’s statement must be accepted as true without dispute. Quarles v. Traders & General Ins. Co., Tex.Civ.App., 340 S.W.2d 545; American Motors Acceptance Corp. v. Heckerman, Tex.Civ.App., 332 S.W.2d 345; Sandone v. Dallas Osteopathic Hospital, Tex.Civ.App., 331 S.W.2d 476; Baxter v. Beaupre, Tex.Civ.App., 295 S.W.2d 718.

In Foxworth-Galbraith Lumber Co. v. Southwestern Contracting Corp., Tex.Civ.App., 165 S.W.2d 221, a fact situation arose similar in many respects to the situation here; and the court there held that “parties may make a note and deed of trust for a definite amount, on agreement that some or all of the money will be advanced at a later date; and that in such event the holder of the note and mortgage will have a valid lien to secure the amount of the money actually advanced, provided that it does not exceed the amount stipulated in the original note and mortgage, even though the mortgage does not expressly provide that it shall secure future advances(Emphasis ours.)

Harry W. Shawver, attorney for American Title Company, testified in court at the time of the hearing on the temporary injunction. The court later took this testimony into consideration in passing on the motion for summary judgment. We quote from Shawver’s testimony:

“Q Is the American Title Company in a position at this time to pay off in full the note held by Kemp, Mr. Kemp doing business as Kemp Lumber Company ?
“A It is.
“Q The principal and interest?
“A It is.
“Q Do you know what that figure is?
“A Yes, sir; I do.
“A These figures that I had written, given to me, were confirmed day before yesterday by Mr. William An-dress, Jr., on the telephone, by myself. * * *
“A I called Mr. Kemp and he would not give me a figure. It is cus*897tomary for us to call the holder of the note at the time it is ready to be paid off, what the principal and interest balance -is, * * * we send the release to them, along with the check in the amount they have given us over the telephone; however, Mr. Kemp did not give me a figure. He said to call his attorney and trustee, William Andress, Jr. I did not call Mr. Andress, but my secretary did. I confirmed later these figures that had been given me. ⅜ * *
“Q All right, sir, what are those figures ?
“A The principal amount is thirteen thousand six hundred fifty dollars and eighty-six cents; the interest, two hundred forty-three dollars and sixty cents, as of December 2, 1960.
“Q All right, sir. Have you computed what the interest would be to date?
“A I have. At seven per cent interest — today is the fifteenth of December — for three days at two dollars and sixty-five cents per day, seven dollars and ninety-five cents, in addition to two hundred forty-three sixty.
“Q Is the American Title Company prepared at this time to pay Mr. Kemp in full, on the principal and interest of his note?
“A It is.”

Later Shawver made an affidavit which is attached to the motion for summary judgment in support thereof. In this supporting affidavit Shawver reiterates in substance the matters to which he earlier testified as above quoted.

In his controverting affidavit appellant does not deny the statements made by Shawver in this testimony and in his supporting affidavit. Nowhere does appellant’s attorney deny that he furnished Shawver the figures which Shawver accepted as the amount due appellant. Therefore Shaw-ver’s testimony and affidavit must be accepted as true.

It is undisputed that Shawver sent appellant a check for $13,913.01 together with a release to be signed by appellant. The latter kept the check'a few days, then .cashed it. But he did not execute and return the release.

In his controverting affidavit appellant says that the check was not tendered in full satisfaction of the note. This statement is made with reference to a matter to which appellant is hardly competent to testify, and is an allegation which is conclusively repudiated by the undisputed facts in connection with the check as hereinbefore set out, which facts appellant does not deny.

Appellant also states in his controverting affidavit that the amount of the check was “substantially insufficient” to pay the principal and interest accrued on the note. In the light of the undisputed facts this broad, general statement is in the nature of an erroneous conclusion. We repeat that nowhere does appellant deny Shawver’s testimony and his supporting affidavit that Shawver, acting as appellee’s agent in closing the sale of the property, was referred by appellant to his, appellant’s attorney to obtain correct information as to the amount due. Nowhere does appellant plead accident or mistake on his or his attorney’s part with reference to the correctness of the amount named by the attorney, which amount was used by Shawver in making out the check. We think that appellant, having authorized his attorney to furnish the figures in question, cannot now, in the absence of any plea of fraud, accident or mistake, create an issue of fact with reference to the matter. Appellant under the undisputed facts is bound by his own figures.

Appellant stresses the fact that the insurance policy was not returned to him. It is undisputed that appellee Westbrook made satisfactory arrangements with Employers Casualty Company so that the latter never *898did carry out its announced intention to cancel the insurance ten days from receipt of notice. It is further undisputed that appellant had actual notice and knowledge that Westbrook and the insurance company had made arrangements whereby the insurance was not to be cancelled. Thus West-brook beyond dispute performed his obligations to take out and maintain insurance on the house under construction.

Of course Employers Casualty Company was guilty of carelessness in failing to return the policy. But its failure to return the policy did not invalidate the insurance contract. Under the circumstances actual manual possession of the policy by the insured was not necessary to make the insurance contract valid and enforceable. Denton v. Kansas City Life Ins. Co., Tex.Civ.App., 231 S.W. 436; 44 C.J.S. Insurance § 265, p. 1055; 29 Am.Jur. 603, 605.

Appellant’s motion for rehearing is overruled.