O'Neil v. Gibson , 1915 Tex. App. LEXIS 651 ( 1915 )

RASBURY, J.

Appellant sued appellee in the justice court of precinct No. 1 of Navarro county, August 2,1913, on appellee’s promissory note dated November 28, 1910, and due 20 days thereafter. Appellee defaulted in the justice court, but, within the time provided by law removed the case to the county court, where trial was had de novo before the county judge, resulting in judgment on the merits of the case for appellee. No question arises on appeal as to the sufficiency of the pleading of either party, but all questions arise upon the sufficiency of the evidence to support the judgment of the court, and for that reason we will omit a statement of the pleading, since the defense of appellee and appellant’s answer thereto appear from the evidence and the issues raised thereon in this court.

Appellant testified concerning the execution and delivery of the note, which was put in issue, in substance, that on November 28, 1910, appellee, who was his attorney and special friend, called at his place of business in Corsicana and borrowed $150, executing the note sued on as evidence of the loan. Appellant held the note until October 9, 1911, when he sent it through a local bank to Dallas, where appellee had in the meanwhile removed, for collection, sending it again foi collection October 13, 1911, payment in both instances being refused. After the note had been due about a year, appellant saw ap-pellee and reminded Mm the note was unpaid, at which time appellee promised to pay the same as soon as he could close a trade for the sale of a house then pending, and that until the trial of the case in the county court appellee made no claim that he did not owe the money represented by the note.

Appellee on the contrary testified that at the time the note was executed appellant was indebted to the firm of Gibson & Calloway $350, balance on fees for legal services rendered appellant during the year 1909 in defending him before the courts in approximately 17 cases charging him with violation of the local option laws, and that on that date appellee visited appellant, and after calling his attention to the unpaid balance and reminding appellant that he had subsequently rendered him other valuable professional services for which he had not been remunerated, insisted that appellant make him a substantial payment. Further talk was indulged in, but it was then and there agreed that appellee should execute the note sued on, which was to be indorsed and negotiated by appellant and the money so secured turned over to appellee, with the further agreement that when the note matured appellant should pay it, the purpose being to raise money to pay upon appellant’s debt to appellee. The note was executed and indorsed, and appellant did secure the money and pay it over to appellee on the fees due, with the agreement that the debt was appellant’s and would be paid by him when it matured. From the maturity of the note on December 20, 1910, to January 14, 1911, ap-pellee saw appellant daily and nothing was said by appellant relating to the note. During 1911 and 1912 appellee saw appellant frequently, but the note was not mentioned. Appellant did not at any time claim appellee owed Mm the money, until the year 1913, when appellant became offended at appellee because appellee accepted employment from appellant’s wife in a suit for divorce growing out of domestic differences, when appellant demanded payment of the note, which appel-lee refused. L. R. Calloway corroborated ap-pellee’s testimony concerning the employment of Gibson & Calloway, and that there was due the firm $350 at the timé the note sued on was executed, which had been assigned to Gibson.

Appellant in rebuttal specifically denied the statements of appellee that the $150 was to be paid on attorney’s fees, but declared that the note represented nothing more nor less than a loan.

Thus it is seen that appellant and appellee are hopelessly in conflict concerning the real consideration for the execution of the note. It is also equally clear that it was the function of the trial judge to reconcile the conflict in the evidence of the parties or adopt as true the facts testified to by one or the other of the litigants. The trial court acted in that respect, and it is useless for us to argue that we cannot disturb such action. It only remains therefore to ascertain if the trial court has in any respect erred in applying the rules of law to the facts so found.

It is first contended, in effect, that even though the court adopted appellee’s evidence as the truth of the transaction, judgment should nevertheless have been for appellee, because the contract between appellee and appellant as testified to by appellee was not available as a legal defense or set-off to the note. The contention misconceives the issue made by the pleading, as well as the purpose of the evidence. The claim made by appellee was that the note represented the debt of appellant and the evidence, if true, establishes nothing less than that. Hence, no issue of payment or set-off arises. The trial judge having found the facts as related and the issue being solely one of fact, and being supported by the evidence, the question of defense or set-off is eliminated, because, as stated, the debt was not the debt of appellee.

Nor can it be said as urged by appellant that the contract testified to by appellee was not mutual solely because appellant testified that no such agreement was in fact made. In disposing of the conflict in the evidence of the parties the court necessarily discarded the evidence of one of them, as it was his duty to do, and when he did so there was of course entire mutuality in the contract proven.

Neither does the question of limitation enter the case as is also urged by appellant. Appellee was not setting off against the note the fees owed him by appellant, and which were barred by the two-year statute of limitation. According to the agreement testified to by appellee and adopted by the court, the note was made in order to enable appellant to make a payment on his debt to appellee. In short, by the finding of the judge appellee’s legal status was that of accommodation maker. Accordingly limitation was not an issue.

As stated in the beginning the case presents issues of fact solely. Such issues are for the determination of the trial court, and when the trial court has determined them the only duty of this court on appeal is to examine the evidence to ascertain if it supports the conclusions of the trial court. It is obvious from the statement already made of the evidence that it does support such conclusions. Accordingly the judgment is affirmed.

Affirmed.