Glass v. Adoue & Lobit , 39 Tex. Civ. App. 21 ( 1905 )

JAMES, Chief Justice.

The case was tried by the judge, and this court must consider that he accepted the testimony, if any, which will support the judgment. The action was upon a note which read as follows:

“February 7, 1886.

“After date I promise to pay to the order of Adoue & Lobit three hundred and ninety-six and nineteen one-hundredths dollars, at their office in Galveston, Texas, value received. F. A. Glass.”

It appears, from the testimony of Lobit, that Glass owed appellees money on a prior note, and sent the above in settlement of the old note. When received appellees returned it to him, saying that they could not accept it in that shape—asked him to fill it out (meaning the blank), and wanted to know when he would pay it. He returned it, and said he could not tell when he would be able to pay it, and asked appellees to hold it, and that he would pay it as soon as he was able. This was by letter. Lobit testified that the letter, with other letters of that date, had been lost in the storm at Galveston.

In our opinion, this testimony would show that the note was not accepted by appellees when first sent, and ivas not accepted, nor finally delivered to them, until it was returned with the letter, whereby appellant fixed the time of payment at the time when he should become able to pay it. The note and letter formed a single transaction, hence all contentions founded upon the theory that they constituted separate transactions are not well taken. The obligation evidenced by the two writings was one to pay the amount called for in the note when plaintiff should become able to do so.

There was evidence sufficient to warrant the finding that appellant did not become able to pay the note until about a year before the trial.

The first assignment of error will not be considered because not a proper one under the rules.

The second assignment relates to a matter that is immaterial.

Affirmed.