Jenkins v. Morgan , 1916 Tex. App. LEXIS 844 ( 1916 )

BUCK, J.

Appellee brought this suit upon two promissory notes; the first note being in the principal sum of $418, signed by appellants, W. N. Jenldns and J. A. and W. L. Donoho, and secured by a chattel mortgage signed by Jenkins on 2 mules, 45 acres of cotton, 50 acres of corn, a cultivator, and a wagon. The second note was in the principal sum of $155, secured by a chattel mortgage on one stump puller; note and mortgage signed by Jenkins alone. Plaintiff sued for his debt, evidenced by the two notes, principal, interest, and attorney’s fees, and for foreclosure of his mortgages.

Appellants pleaded that there had been a payment by Jenkins of $105.10, by cotton delivered by him to Morgan, and that Jenkins had requested at the time of said delivery that it be applied on the $418 note; the payment having been by defendant applied on the $155 note. This payment was in addition to the settlement of an open account owing to Morgan by Jenldns, the payment of which is not objected to by appellants in their brief. Appellants further pleaded that it was the agreement and understanding of all parties that the mortgage taken to secure the $418 note should be made payable to the Donohos, who signed the note as accommodation paper, instead of being made payable to Morgan. Jenkins pleaded further that the stump puller, for which he had given the $155 note and the second mortgage, did not comply with the warranties made and did not do the work promised, and that after a thorough test of said stump puller, and after its inability and unfitness to do the work promised had been thoroughly established, he had returned it to Morgan, and that the second note and mortgage should be canceled for failure of consideration. Other pleas were contained in the original and supplemental pleadings of the parties, but sufficient, we think, has been given for the purpose of this opinion.

The cause was submitted to the jury on special issues, and in answer thereto the jury found:

(1) That plaintiff did not agree to accept the note for $418, signed by Jenkins and the two Donohos, unsecured by a mortgage in his (Morgan’s) favor, and did not agree that the mortgage given by Jenkins should be in favor of the 'Donohos.

(2) That the defendants agreed that the open account of Jenkins to Morgan should be paid out of the proceeds of the crop of Jenkins before the payment of the note for $418..

(3) That the defendant knew at the time it was made the kind of mortgage executed by Jenkins to Morgan.

(4) That the only warranty made by Morgan as to the stump puller was that “it would pull any stump that any puller of same size would pull.”

(5) That the stump puller had not failed to comply with the warranty made, and that Jenkins had made no complaint to Morgan during the year 1914 as to any alleged failure.

(0) That Jenkins instructed plaintiff to apply the proceeds of the eight bales of cotton sold, first, to the open account; and, second, to the $418 note.

Other issues were presented and answered, but, except as noted hereafter in this opinion, the above we consider sufficient for this statement.

Upon this verdict the court entered judgment as follows: Prorating the $105.10, crediting $76.64 on the $418 note, and $28.41 on the $155 note, and giving a judgment for plaintiff against all parties defendant for balance of $418 note, to wit, $399.23, and giving judgment for plaintiff against Jenkins for balance of $155 note, or $147.87, with a foreclosure of both mortgages. Defendants appeal.

[1] We conclude that the trial court erred in prorating the $105.10 payment between the two obligations. The jury found, as they were justified by the evidence, that Jenkins instructed plaintiff to apply this payment on the $418 note. This he had a right to do. If a creditor, having several debts against a debtor, receive a voluntary payment from the debtor with instructions to appropriate it to one of them, it must be so appropriated. Eylar v. Read et al., 60 Tex. 387, 389; Larkin v. Watt, 32 S. W. 552; Crawford v. Pancoast, 62 S. W. 559; 4 Green’s Digest, 8845-8846, and authorities there cited; 30 Cyc. 1227 et seq. Therefore we sustain appellants’ fourth assignment, which urges as error this action of the court.

[2-4] We feel that appellee’s objection to the consideration of appellants’ first and second assignments must be sustained, because (1) they are not even substantial copies of any assignment contained in the motion for new trial, being, at best, only a combination and a reconstruction of several assignments therein contained; (2) they are multifarious, and complain of the exclusion in tire one instance, and the admission in the other, of the testimony of several witnesses, and they do not set out the objections urged thereto in the trial court; (3) the bill of exceptions to which reference is made to sustain assignment No. 1 does not state what objections were urged to the admission of the testimony. Buckler v. Kneezell, 91 S. W. 367; Dixson v. Cooper, 178 S. W. 695; Watson v. Patrick, 174 S. W. 633; National Live Stofck Ins. Co. v. Gomillion, 174 S. W. 330; Ruth v. Cobe, 165 S. W. 530. Moreover, we are of the opinion that, were the assignments given consideration, no reversible error would be found, for the reasons, in the main, set forth in appellee’s counter assignments.

[5, 6] The third assignment urges error in the failure of the court to submit the following special issue:

“Did the plaintiff, R. Morgan, in the sale to the defendant, W. N. Jenkins, of the stump puller in question, guarantee tlie same to give satisfactory service as a stump puller with the team of mules then owned by the defendant, Jenkins, and that he (Morgan) would send a competent person, or expert, to show the defendant, Jenkins, how to rig and operate said stump puller?”

If this assignment be not subject to the vice of multifariousness, as urged by appel-lee, and therefore not required to be considered by us, we are of the opinion that the first question was submitted and answered in special issue No. 7 given, to wit:

“Did the plaintiff, R. Morgan, in the sale to the defendant, Jenkins, of the stump puller _ in question in this suit, guarantee the same to give satisfactory service as a stump puller with the team of mules then owned by the defendant Jenkins?” To which the jury answered: “No.”

If the defendants desired the submission of the other question eontained in the special charge tendered, it was their duty to submit it separately, and their failure so to do would preclude their successfully urging error to the court’s action in failing to submit two issues in the same special charge, one of which had been already submitted in the main charge. Griffin v. Heard, 78 Tex. 607, 14 S. W. 892; McWhirter v. Allen, 1 Tex. Civ. App. 649, 20 S. W. 1007; G., etc. Ry. Co. v. Clark, 2 Willson Civ. Cas. Ct. App. § 512. Moreover, if there had been a promise on the part of plaintiff to send an expért to show Jenkins how to “rig and operate the puller,” it was no part of the warranty; the jury having found that the only warranty made by plaintiff was that the stump puller “would pull any stump that any puller of same size would pull.” The evidence, further, was un-contradicted that the appellee did send a representative out to Jenkins’ place twice for the purpose of showing, Jenkins how to rig and operate the puller. It is true that defendants claim that such representative was not an expert; but, in view of what we have heretofore said, we do not think any reversible error is presented in this assignment.

[7] The fifth assignment is as follows:

“The court erred in refusing to set aside the judgment and grant the appellants a new trial, because of the newly discovered evidence as to the experiments or tests made by the appellee, Morgan, with the stump puller on the farm of Henry Martin, which newly discovered evidence shows said experiments to have been made by a different stump puller, or a stump puller with different appliances and equipment than the Jenkins’ stump puller.”

We do not think there is any merit in this contention. It is uncontradicted that the same stump puller was used iu both tests. So far as the record discloses, the only difference in the equipment of the stump puller as used by Jenkins on his farm, and as used by Morgan on the Martin farm, was as to the lever. The plaintiff testified, and his testimony is uncontradicted, that it is not customary to furnish a lever with a stump puller. Martin made his lever out of a green sapling, and it was claimed by plaintiff and some of the witnesses that the lever, being gre'en, would under strain bend or “cup up.” Morgan constructed' a lever by nailing two timbers 2x8 and 18 feet long together. The only difference between the testimony of plaintiff’s witnesses and the witnesses whose affidavits were offered on the motion for new trial, as to this lever, was that plaintiff’s witnesses testified that the lever was 18 feet long, and one of defendants’ affiants stated that the beam was “about 20 feet long.” After an examination of the affidavits attached to defendants’ motion for a new trial, we have concluded that the trial court did not err in overruling the motion, and the fifth and last assignment is overruled.

Por the reasons given, the judgment of the court below will be reformed, so as to appropriate the entire payment of $105.10 to the $418 note, and, as so reformed, the judgment will be affirmed, with the costs of appeal taxed against appellee.

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