Atcheson v. Scott

Gould, Associate Justice. Our opinion is, that a promissory note made in this State during the late civil war, payable “ twenty-four months after the ratification of the treaty of peace between the United States and the Confederate States of America, with eight per cent interest from date, in whatever may then be the legal tender of the country,” is not void for uncertainty or illegality, nor is it, when properly construed, a note payable in Confederate money. As in cases of contracts payable in Confederate money, this court has departed from the line of decisions inaugurated shortly after the war, at a time and under circumstances unfavorable to the proper disposition of such questions, so in this case of a [221] similar question invoking like considerations, we do not hesitate to take the same course. The case of Thompson v. Houston, 31 Tex., 610, may be regarded as overruled. The court below, following that case, charged that the note above set forth was “ illegal and void,” and in so doing committed a material error. We regard the judgment of our predecessors on the former appeal of this case (36 Tex., 76, and 38 Tex., 384) as amounting in substance to a reversal on the facts. The conclusion that Pye’s debt had not been discharged, (the payment of which debt Atcheson had assumed, and, as he claimed, had consummated,) was predicated on the assumption that Pye’s note belonged to the estate of the husband of Mrs. Scott, she being administratrix, and on the further legal proposition that neither the administratrix nor her attorney could make a novation of that debt by accepting in lieu thereof such a note as has been described. If this conclusion depended upon the invalidity of the note accepted, we have already stated our position on that subject. The writer, however, construes that opinion as denying the right of Mrs. Scott to accept in lieu of a note belonging to the estate any other note whatever, unless authorized thereto by the court, and as placing the conclusion reached on that ground. In applying this legal proposition to the case, it is to be borne in mind that Pye’s note was payable to Mrs. Scott individually, and that she, being the apparent and legal owner and holder, had it in her pow'er to transfer it at her own will, and that any person innocently and in good faith trading for the note would acquire the legal ownership. Unless Atcheson had notice that Mrs. Scott, in accepting his note as a payment of the Pye note, was acting without authority and in violation of her duty as administratrix, our opinion is, that the principle invoked was inapplicable and that the transaction was valid. The judgment of this court on the former appeal, in so far as it was founded on the conclusion of fact that the Pye note belonged to the estate, does not constitute the law of the case [222] on that point, where the evidence is different; and in so far as it was founded on a denial of the power of Mrs. Scott to transfer or novate to an innocent party a note payable to her, by taking in lieu thereof such a note as Atcheson gave, does not command our assent. The pleadings of Mrs. Scott, originally, were insufficient to present the issue as to her power to control the Pye note, and even as amended, after the reversal, contained no averment charging Atcheson with notice of the rights of the estate. The evidence shows that the estate of Scott is not yet closed; but it appears that Patrick, who was for many years chief justice of the county, and who acted as trustee for Mrs. Scott in the various deeds of trust taken in the various novations of the debt growing out of a loan to Moble in 1857, supposed that Mrs. Scott was managing her own money, and, for aught that appears, Atcheson acted under the same belief. Indeed, the evidence that the Pye note belonged to the estate is not satisfactory, and the issue on that point was submitted to the jury in such a way as to lead them to infer that it depended mainly on the question, whether the original fund loaned to Moble, five or six years before, belonged to the estate. Both the pleadings and evidence impeaching the alleged payment by Atcheson of the Pye note were insufficient. This litigation seems to have originated in incorrect views on both sides as to the validity and construction of the note by Atcheson. Our opinion is, that it was a valid note, payable in legal-tender notes two years after the close of the war. The difference in the rate of interest makes it largely to the benefit of appellant that his unquestionable liability to Mrs. Scott be enforced according to their contract on his note to her. Regarding the errors committed as fundamental, the judgment is reversed and the cause remanded. Reversed and remanded.