Powers v. Ullmann, Stern & Krausse, Inc.

COBBS, J. Appellee filed this suit against appellant to recover on two promissory notes dated August 5, 1927, each for $1,750, and bearing interest from March 1, 1927, with 10 per cent, attorney’s fees. They were executed iu a series, containing the usual acceleration clause, payable to the order of ap-pellee, and secured by a deed of trust of even date, executed by J. A. Powers to J. A. Brown, trustee, for the use and benefit of ap-pellee, covering certain acreage in Edwards county, Tex. Appellant having defaulted in the payment of the first note, which became due November 1, 1927, appellee exercised its option and declared both notes due and payable. Among others things, the deed of trust provided to secure also future sums. Appellant filed appropriate pleadings. The ease was tried with a jury upon special is *911 sues, and upon the Incoming of answers to same judgment was entered for appellee. On January 11, 1927, Oamp Wood Supply Company filed its voluntary petition in bank* ruptey in the United States Dist. Court, Western District, at San Antonio, Tex. That corporation was indebted to appellee in the sum of $2,856 by unsecured account. The trustee in bankruptcy was offering for sale the stock of merchandise and the fixtures, together with notes and accounts receivable. Ross Powers, a son of appellant, intended to bid at the sale, but appellee proposed and agreed with him that if he would refrain from bidding and would not bid, but would permit appellee to do so, it would thereafter permit Ross Powers to purchase and take over and receive all such properties, etc., at cost to appellee; and with the additional understanding and consideration that Ross Powers should agree and obligate himself individually to pay to appel-lee the debt which was owing by the said bankrupt concern to appellee; anct a further consideration that appellee should pay to the trustee in bankruptcy for said properties, stock, fixtures, notes, and accounts. The guaranty for $3,500 was to cover the preexisting debt owing by the supply company. This sum Ross Powers was to pay to appel-lee. On or about August 5, 1927, appellee proposed and agreed with Ross Powers and appellant, if appellant would pay the sum of $2,500 cash, it would surrender to appellant and to Ross Powers all and every obligation of said parties and each of them to appellee, including the guaranty agreement and- all notes theretofore executed by Ross Powers to appellee. Ross Powers then understood and was informed that, having executed to ap-pellee two promissory notes, three for $1,000 and $1,000 and $1,500, respectively, aggregating $3,500, to equal the guaranty and protect appellee in the purchase price of the properties, and one for $2,856, amount owing appel-lee by the concern, the notes were received in full settlement. Powers turned said notes over to Ross Powers to be delivered to appel-lee upon his surrender of all the documents and obligations he then held. When presented to appellee they were refused, and he refused to accept said note and deed of trust in full satisfaction, but proposed that Ross Powers and his father should execute two additional notes for $867.40, which appellant refused to do and demanded the return of the two $1,750 notes and his deed of trust, but they were retained by appellee and sued upon. Appellant pleaded an accord and satisfaction by reason of the delivery to appellee and his acceptance of the said notes and deed of trust to appellee, by the said Ross Powers in full settlement of all controversies between plaintiff and defendant and the said Ross Powers. While this case is elaborately briefed by both parties, with 82 assignments and propositions presented, yet it is lacking in a clear and concise statement of the case. While we shall pass upon and consider each claim of error presented, we will not write’ on each, but only on the real material question, as we see it presented. The transcript contains 142 pages and the statement of facts 201 pages. Appellant filed a brief containing 68 pages and a supplemental brief of 29 pages, while appellee’s brief contains 50 pages. The questions involved are simple after being threshed out — largely a fact case — and should be easily stated without prolixity. Appellant presents 30 propositions. In answer to the first general proposition, a judgment unsupported by evidence will not stand, but inasmuch as the judgment in this case is not supported by evidence it will not stand as a sound proposition. The evidence here shows that the two notes and deed of trust were delivered and kept by appellee even after appellant demanded their return. The evidence shows that the obligation of $1,734.91 came under appellant’s guaranty as the purchase price of the goods. It is true that an unlawful agreement between parties to stifle competition or to secure an unfair advantage to a creditor at a judicial sale may or not be invalid. We see nothing in the facts here that made the agreement between the parties invalid. Appellant was a creditor who was endeavoring to secure his debt out of the proceeds and intended to bid on the goods, and appellant was likewise desirous of purchasing goods for the least possible amount, and had an agreement that if appellee would convey the goods to him after the purchase he would pay the purchase price and take the goods off his hands. It is true that appellee was a creditor and interested in making the goodg bring enough to pay him his debt. There was no fraud shown, nor was it shown that by such an outstanding agreement the goods did not bring a fair price, nor that any one was injured thereby. It is not perceived how it stifled competition at the sale or secured an unfair advantage. The testimony is undisputed that the obligations were delivered to appellant and kept by him. That was the intention of the parties, and by reason thereof any further obligation on his part was waived. The jury having answered that appellants were indebted to appellee $2,375 and interest, but not stating the interest, was not material error. The court was authorized to render the judgment for $2,960 which included interest in the contract mentioned, together with attorney’s fees. Interest was a part of the debt which always follows, and only involved such a calculation that the court was expected to make. We think the petition was sufficient and more than sufficient. Especially so was it relating to the consideration relative to sale *912 of the goods, as well as to the acts and alleged agency of Ross Powers. Besides other proof, it was shown by his father that ¡he was authorized to do the things set forth. We likewise overrule propositions 11, 12, IS, and 14, questioning the pleading that the allegations in regard to the trust deed ate' a mere conclusion of the pleader, as well as in regard to the agency of Ross Powers. Also the allegation that Ross Powers had given a dishonored check is immaterial. It was not error to admit proof of the bill of sale; it was mentioned as a connecting link in the transaction. It was not error to permit cross-examination on collateral issues when it tended to amplify the situation. We can see no error in permitting proof of debt by appellant in the bankrupt proceedings and application of orders thereon. There was no error in not giving special instruction to the jury to return a verdict for appellant; it would have been manifest error to have done so. The judgment was not non obstante, but entirely based upon the findings of facts of a competent jury. Of course, an agreement to bid in property for another at a sale is not invalid because it lessens competition. It must go further and possess other conditions that render it bad. It must possess other facts of its mala fide not shown here. There is no impropriety in the court’s recalling a jury and instructing them further during their deliberation as to the burden of proof, though so instructed in the main charge. Stripped of all technicalities, the real question in the ease grows out- of the alleged accord and satisfaction. It is the contention of appellant that he left with appellee, through Ross Powers, two notes of defendant for $1,-750 each, and the deed of trust securing same, payable to Ullmann, Stem & Krausse, in full settlement of all claims asserted by Ullmann, Stern and Krausse against A. J. Powers, and Ross Powers. This, so far, is an undisputed and uncontradicted fact. But the elder Powers stated that it was expected that he was to get back the guaranty and all papers. The written instruction which accompanied the delivery were “to be delivered to J. A. Brown of Ullmann, Stem & Krausse, when Brown delivers you guarantee agreement executed by J. A. Powers for $3,500.00 and note and release of O/M for $2,850.00, and note (a) for $3,500, executed by Ross Powers and bill of sale to the stock of goods, fixtures, notes and accounts of the Camp Wood Supply Company.” Appellee refused to accept them upon the terms proposed, yet kept them and refused to deliver them upon demand. Appellee refused to accept them, as in full settlement as tendered, but kept them and sued upon them. Appellant refused to get the additional notes demanded, for $867 and $1,734.90. It is contended no accord and satisfaction were completed. Ross took the notes back to his father, who refused to execute them, and the matter stood in statu quo until culminated in this suit. While this involved an issue of undisputed fact, it was submitted to the jury and they answered that the notes for $1,750 and the deed of trust on 900 acres of land were delivered in full settlement of all claims. The evidence does not support this issue, for it is undisputed that the notes were delivered upon the further condition that “when Brown delivers you guarantee agreement executed by J. A. Powers for $3,500.00 and note and release of O/M for $2,850.00, and note (a) for $3,500, executed by Ross Powers and bill of sale of goods, fixtures, notes and accounts of the Camp Wood Supply Company.” In other words, the delivery of the notes to appellee was not to take place until appellee surrendered to appellant certain papers. If it should be found that appellant kept the notes and appropriated them upon their partial or incomplete delivery and surrendered nothing for them, he cannot be heard to urge his right and title thereto, unless he be required to surrender the papers he held. If so he will be charged with a ratification thereof, and surrender the papersi in his possession. As the issues do not seem to have been covered by the findings of the court, or passed upon by the jury, we do not believe the case has been fully developed or passed upon. It has not been shown what became of the papers that should have been delivered by appellee. It is the opinion of the court that this case has not been fully developed, and it is reversed and remanded for another trial. Reversed and remanded.