Katy State Bank v. Katy Bank, Unincorporated

WILLSON, C. J.

(after stating the facts as above).

As stated above, the amount of the notes at the time the parties entered into the contract was $4,523.63. It appeared from the testimony that after that time payments as follows were made on the notes by Moore: November 24, 1920, $1,000; March 20, 1921, $350; April 13, 1921, $902.13; April 29, 1921, $288. And it appeared, further, that on December 20, 1920, Moore paid $200 to appellant, but whether on account of the notes or not was not shown. Taking said $200 payment into account, as we think should be done (21 R. G. L. 97), and allowing interest at the rate stipulated for in the notes, to wit, 8 per cent., a simple calculation shows the amount unpaid (and presumably “lost” within the meaning of the contract) on the notes December 31, 1924, the date of the judgment, to have been $2,682.87. One-half of that sum, the amount appellees by the terms of the contract were bound to pay, was $1,341.43. It appeared without dispute in the testimony that appellees paid $1,255.49 May 5, 1921. That amount, subtracted from the $1,341.43, left $85.94 as the part unpaid of the amount appellees were bound to pay.

We do not think there is merit in appellant’s contention that appellees were es-topped,. by admissions made by O. C. Bailey while acting as its cashier, from asserting that the part of the $2,000 unpaid was $744.-51, the amount sued for; ■ nor. do we think there is merit in appellee’s contention that they were entitled to have the amount paid hy O. C. Bailey to a Houston bank on account of the note for $1,000, made hy Moore October 18, 1920, set off against the amount due by them under the contract sued upon.

The judgment will be reversed, and judgment will be rendered here in appellant’s favor against appellee for said sum of $S5.94 and interest thereon from December 81, 1924.