West Texas Loan Co. v. Montgomery

OPINION OP THE COURT. ED. MECHEM, District Judge. Appellant began suit in the court below by filing an action in replevin in usual form against the appellee for the possession of certain livestock. Suit was filed September 24, 1918. Appellee answered, denying allegations of the complaint, and alleging that the appellant was claiming possession under a certain chattle mortgage given- to secure the payment of some notes, the principal one being for $6,877.94, due June 10, 1918; that on August 12, 1918, the appellant had agreed with the appellee that, if appellee would gather and move the live stock onto better grass, the notes would be extended until frost that fall, which occurred October 28, 1918; that appellee gathered and moved said live stock at great labor and expense, in accordance with said agreement, but that on September 24, 1918, the appellant, in violation of said agreement, sued out said writ of replevin, and wrongfully took possession of said live stock, and converted same to its own use and benefit, to appel-lee’s damage in the sum of $16,000. Appellant replied, admitting the note and mortgage, but denying the other allegations of the answer. The case was tried to the court with a jury, and verdict and judgment for appellee in the sum of $2,187.07 was returned, from which • appellant brings this appeal. The appellant raises two objections: First, that the extension was not to a definite date; and, second, that the extension was without consideration. [1] The appellant first urges that the testimony on behalf of the appellee as to the extension was not sufficiently definite. There was sufficient evidence introduced on this question to require the same to be submitted to the jury and it was properly submitted. The appellant next urges that until frost in the fall of 1918 is not an extension to a definite date. Inasmuch as this note was past due, and the question of the release of a surety is not involved, the rigid rule as to definiteness of time would not apply; but we do not deem it necessary to go into that phase of the question, as we are satisfied that an extension of time “until frost” is an extension for a definite time, the rule being that an agreement to extend the time for payment, in order to be valid, must be for a definite time, although no precise date need be fixed, it being sufficient if the time can be readily ascertained. 8 C. J. 428. It is sufficient if the promise is to pay at a time which must certainly come at all events. Cota v. Buck, 7 Metc. (Mass.) 588, 41 Am. Dec. 464. In this latitude frost must come, and the coming of frost is certain, and not contingent. [2] The next proposition urged by appellant is that there was no consideration for the extension, and that it was therefore void. The appellee testified that the president of the appellant corporation agreed with him that, if he would gather the live stock and move it onto better grass, the notes would be extended and that he (appellee) in pursuance to such agreement gathered said live stock and moved the same; and he and his wife worked, and that he paid out money in employing others to help. The court instructed the jury that, if they believed the testimony of the appellee, it would constitute a consideration for the extension. The court was correct in this. [4] It cannot seriously be contended that, where the appellee was induced to spend labor and money which he otherwise would not have spent, the same was not a consideration for the extension. It was not necessary that he pay money to the appellant, but if he was induced to part with something of value it was sufficient. [3] The appellant has argued that some of the instructions given by the court were erroneous, but as the objections raise the same question as to time and consideration it is not necessary to discuss them. Appellant says that the court erred in permitting the appellee to amend his answer at the close of the case. Inasmuch as the appellant has failed to incorporate the original answer in the transcript, we are unable to discover what the amendment was, and for that reason cannot consider the question. Finding no error in the record, the case is affirmed; and it is so ordered. ROBERTS, C. J., and RAYNOLDS, J., concur.