Roberts v. J. B. Colt Co.

HICKMAN, C. J. The appeal is from a judgment in favor of appellee against appellant on two promissory notes. The defense pleaded was in the nature of a cross-action for breach" of warranty. The execution of the notes was admitted, hut it was alleged that same were given in payment of a lighting plant, which was warranted to be a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship; that the plant was not'worth the price contracted to be paid, but was worth only $50, which amount had theretofore been paid on the notes. Appellant further sought damages which he alleged were sustained on account of the manner in which the plant was installed in his home. A jury was demanded, and the cause was submitted on two issues. These issues submitted only the matters pleaded by appellant in his answer, and were answered against him. There was no necessity to submit any issues on the cause of action alleged by appellee, because there was no issue of fact as to the execution of the notes or as to the credits ■to which same were entitled. No objections whatever were filed to the court’s charge, and no bills of exceptions appear in the record. The first question presented for decision is whether appellee pleaded and proved facts entitling it to maintain the suit. It alleged in its petition that it was a foreign corporation, duly incorporated under the laws of the state of New York, with a permit to transact business in the state of Texas. Following this allegation was the following; “Plaintiff further alleges that this transaction was by written contract, in which the contract was not binding until approved'by ■the company at Kansas City, Mo. That this is an interstate shipment, and is in no way subject to the laws of this state concerning such shipments.” There was no proof that appellee had a permit to transact business in this state, but the proof supported the allegation that the shipment was interstate. We do not find it necessary to set out the facts which were developed concerning the character of contract and shipment. It is sufficient to state that the transaction was substantially the same as that involved in the ease of J. B. Colt Company v. McBurnett (Tex. Civ. App.) 1 S.W.(2d) 385. On the authority of that decision, and the eases there cited, it is our opinion that the facts in the instant case show a valid contract for an interstate shipment. A foreign corporation, though without a permit to do business in this state, may maintain a suit in the courts of this state for the recovery of the price of its products, if the transaction is interstate in its character. J. - B. Colt Co. v. McBurnett, supra, and authorities there cited. Proposition No. 1 is overruled. It is presented that there was a fatal variance between the allegations and proof in the following particulars: (1) appellee alleged that said notes provided “defendant will pay 15% attorneys’ fees on the princi- *198 ¡ml and interest due if said notes are collected by suit,” whereas the notes provided for 15 per cent, for attorney’s fees, “if not paid at maturity”; (2) it was alleged that one of the notes was dated September 5, 1924, when in fact same was, dated September 5, 1923. No objections were made to the introduction of the notes in evidence on account of any variance. The appellant on the witness stand acknowledged the execution of the very notes introduced, and there is no suggestion that he was misled in any manner by the allegations of the petition. The question is raised only by a request for a peremptory instruction and by objections to the judgment in the motion for new trial. The general rule is well established in this state that, for a variance to be fatal, it must be material. We cited a number of authorities on this question in Goodwin v. Abilene State Bank, 294 S. W. 883 (error refused). A large number of Texas cases so holding are collated in 49 C. J. p. 810, note 50. This general rule is applicable to actions on bills and notes. 6 Tex. Jur. 945, § 271, and the authorities cited therein. In the same volume, on page 947, § 272, it is stated: “A discrepancy between the recital of the date of the execution of the instrument, or of its maturity, and the actual date or maturity of the paper does not constitute a fatal variance.” This statement in the text is supported by many cases, among which are the following: National Bank of Rockwall v. Stephenson, 82 Tex. 435, 18 S. W. 583; Trabue v. Stonum, 20 Tex. 453; Finklea v. First State Bank (Tex. Civ. App.) 247 S. W. 320; Smith v. Citizens’ National Bank (Tex. Civ. App.) 246 S. W. 407; Patton v. Crisp & White (Tex. Civ. App.) 11 S.W.(2d) 826. Where the variance amounts to no more than a misdescription, the question cannot be raised in a request for peremptory instruction, where no objection was made to the evidence at the time same was offered. Cushing v. Riddel (Tex. Civ. App.) 255 S. W. 479; Orange & N. W. Railway Co. v. Tatum (Tex. Civ. App.) 261 S. W. 421; Bland v. Cruce (Tex. Civ. App.) 238 S. W. 720; Dallas Plumbing Co. v. Harrington (Tex. Civ. App.) 275 S. W. 190. It is presented that the trial court erred in rendering judgment against appellant for the 15 per cent, attorneys’ fees stipulated in the notes. The basis of this contention is that the provision for , attorneys’ fees is a contract of indemnity, rather than for liquidated damages, that there was no proof in the record as to what sum, if any, was paid- or contracted to be paid for the services of the attorneys engaged to prosecute this litigation, and that there was neither allegation nor proof that the notes had been placed in the hands of attorneys for vollection, or that 15 per cent, was a reasonable fee for instituting- suit thereon. It is now the settled law of this state that the usual stipulation for attorneys’ fees in a note evidences a contract of indemnity, and not" for liquidated damages. Ehlinger v. Clark, 117 Tex. 547, 8 S.W.(2d) 666; Lanier v. Jones, 104 Tex. 247, 136 S. W. 255; First National Bank v. Robinson, 104 Tex. 166, 135 S. W. 372; Amuny v. Seaboard Bank & Trust Co. (Tex. Com. App.) 23 S.W.(2d) 287; 6 Tex. Jur. 1024, § 327 et seq. But, notwithstanding the provision is a contract of indemnity, the rule is that, upon a showing of the happening of the event named in the note, the holder is prima facie entitled to recover the sum stipulated, and, if in any case there is any reason why the fees should not be paid, it is a matter of affirmative defense. Authorities next above cited, and 6 Tex. Jur. p. 1031, § 332. It was not necessary for the appellee either to allege or prove that it had placed the notes in the hands of an attorney for collection or had contracted to pay the fees stipulated, because these were not the contingencies provided in the note's for the accrual of attorneys’ fees. A plaintiff, in order to recover attorneys’ fees, is required to plead and prove only the facts entitling him thereto according to the provisions of the note upon which he sues. Nor was any proof necessary, either that the notes were not paid at maturity, or that suit had been instituted thereon. The mere bringing of. the suit and possession of the notes evidenced the fulfillment of these contingencies, and the court takes judicial cognizance of these facts, in the absence of any plea or evidence of payment. Adams v. Bartell, 46 Tex. Civ. App. 349, 102 S. W. 779; Raike v. Clayton (Tex. Civ. App.) 175 S. W. 498; McAnally v. Vickry (Tex. Civ. App.) 79 S. W. 857; Harris v. Scrivener (Tex. Civ. App.) 78 S. W. 705; Hefley v. Milam County Bank (Tex. Civ. App.) 39 S. W. 325. Appellant has presented no proposition requiring the reversal of the judgment of the trial court, and same is therefore affirmed.