Zan v. Clark , 53 Tex. Civ. App. 525 ( 1909 )

The nature and result of this suit is stated as follows in appellant's brief:

"This suit was instituted in the District Court of Falls County, on June 20, 1905, by the plaintiffs A. Clark and Annette Moseley, upon six vendor's lien notes and for the foreclosure of the vendor's lien executed by John Zann and payable to the order of W. W. Holland and by said Holland endorsed without recourse to the firm of Damon Gibson. One of these notes was by Damon Gibson transferred and assigned to Miss Annette Moseley, and the other five notes were transferred and assigned to A. Clark.

"This suit was instituted by plaintiffs A. Clark and Annette Moseley, jointly, against defendants John Zan and W. W. Holland upon six vendor's lien notes and for foreclosure of the vendor's lien upon 161 3/4 acres of land situated in Falls and Robertson Counties. All of said notes were executed by John Zan on the 27th day of October, 1900, and were due in one, two, three, four, five and six years after date respectively, and were payable to the order of W. W. Holland and each was for the sum of $316.66 2-3 and each bears interest at the rate of ten percent per annum and contain the usual clause of ten percent attorney's fees. Each of said notes also contains a clause providing as follows: 'It is understood and agreed that failure to pay this note or any installment of interest thereon when due, shall, at the election of the holder of them, or any of them, mature all notes this day given by me to said W. W. Holland in payment for said property.' Each of said notes also contains this clause: 'This note is given in part payment for a certain lot or parcel of land situated in Robertson and Falls County, Texas, 160 acres of the John West league, this day conveyed to John Zan by W. W. Holland.' Each of said notes also contains the following: 'Consideration. Cash, $750.66 2-3; Note 1, $316.66 2-3; Note 2, $316.66 2-3; Note 3, $316.66 2-3; Note 4, $316.66 2-3; Note 5, $316.66 2-3; Note 6, $316.66 2-3." Upon Note No. 1 there was a credit of $100 of date October 26, 1901, and a credit of $50 of date October 4, 1902.

"On January 20, 1904, all of these notes were endorsed in blank without recourse by W. W. Holland, and transferred by him to Damon Gibson, a firm composed of H. G. Damon and Guy M. Gibson, and on said date Holland executed a transfer of the vendor's lien to said parties. At the time of the transfer of these notes by Holland to Damon Gibson, Notes Nos. 1, 2 and 3 were due and unpaid.

"Defendants Holland and Zan's pleadings allege that the consideration for the transfer of these notes by Holland to Damon Gibson and the transfer of vendor's lien was the written promise by Damon Gibson to convey to defendant Holland four hundred and fifty acres of land in the Republic of Mexico, which said land Damon Gibson represented to Holland was very fertile and covered with dense forests of mahogany, rosewood and other valuable timbers, and free from overflow and insects, etc. That said representations were knowingly, falsely and fraudulently made and that they were untrue and in consequence the consideration for said transfer had failed and the notes herein sued upon were still the property of W. W. Holland. About January 26, 1904, Damon Gibson put up one of these notes, the one due October 27, 1904, with Miss Annette Moseley as collateral security for a loan, and on June 14, 1905, said note was sold and transferred to the plaintiff, Miss Moseley. The other five notes were transferred to the plaintiff, A. Clark, in February, 1905.

"The defendants Holland and Zan interpleaded Damon Gibson and set up rescission of the transfer of the vendor's lien and transfer of the notes, and asked for special damages, asked for rescission, and defendant Holland also prayed for judgment for the title and possession of the notes against all parties to the suit. Defendant Zan pleaded payment of said notes to Holland by a retransfer of the land.

"Upon a trial before a jury, the court instructed a verdict for the plaintiffs against John Zan for the full amount of the notes, and a foreclosure of the vendor's lien against both defendants Holland and Zan, and rendered judgment accordingly."

There is no merit in appellants' first and second assignments of error, based upon the alleged distinction between the names John Zan and John Zann. Rules of spelling do not constitute rules of law, and if a name spelled with different letters can have but one pronunciation, insofar as legal rights are concerned it is not material which way the name is spelled.

The third assignment is addressed to the action of the court in refusing to allow the defendants to implead Damon Gibson. We overrule that assignment, because it is not shown that Damon Gibson were proper parties to the controversy between the plaintiffs and defendants, and the defendants had no right to litigate in this case any cause of action they may have against Damon Gibson. (Frey v. Ft. Worth R. G. Ry. Co., 86 Tex. 465 [86 Tex. 465]; Oak Cliff College v. Armstrong, 50 S.W. 610; Stewart v. Gordon, 65 Tex. 347.)

The fourth assignment is overruled, because if the plaintiffs' petition did not show all the facts necessary to entitle them to a judgment of foreclosure against the defendant Holland, such facts were supplied by the defendants' answer.

The other assignments are addressed to the action of the court in directing a verdict for the plaintiffs, and in not submitting the case to the jury upon the defendants' pleas of fraud alleged to have been perpetrated upon the defendant Holland by Damon Gibson. No error was committed in that regard, because the undisputed testimony coming from both sides shows that if the alleged fraud was ever committed by Damon Gibson in contracting to sell Holland land in Mexico, after the discovery of the fraud by Holland he made another contract with Damon Gibson for other lands in lieu of that charged by him to have been misrepresented by Damon Gibson. According to his own testimony, he went to Damon Gibson, charged them with misrepresenting the land they had agreed to sell him, and demanded $1500 compensation for the wrong done him. That demand was refused, but in lieu thereof and as a substitute for the first contract, another was made by which he was to have other lands. This being the case, the alleged fraud pleaded by Holland constituted no defense to this suit.

No error has been shown, and the judgment is affirmed.

Affirmed.

Associate Justice Rice did not sit in this case.

Writ of error refused.