Blakemore & Routh v. Jones , 5 Tex. Civ. App. 516 ( 1893 )

ON MOTION FOR REHEARING.

STOREY, L. J., Special Judge.

It is contended by appellant: (1) That the court below correctly construed the contract sued on to be self-executing, and that it gave appellants the right to demand of and to receive from Faires the rent due appellee, Jones, by Faires for the year 1887, without any action by appellee or settlement between him and Faires; and that the court below correctly held that appellee was entitled to a credit for the amount due by Faires; and that the evidence showed that there were 78-J- acres of the land at $7 per acre, making the $549.50, as found by the court below.

(2) That if not affirmed, the judgment of the court below should have been reversed and remanded, because, as appellee contends, the pleadings and exhibits attached thereto show that appellee has other evidence constituting a defense, and that the case has not been fully developed.

(3) That in any event the appellee should have been credited with $199.90 paid by Faires to Blakemore through the witness Hill.

1. As to the first point raised, we think we have correctly construed the contract sued on. It requires a settlement between appellee, Jones, and his tenant, Faires, to ascertain the amount of rent due Jones, and that these amounts for rents for the years 1886 and 1887, when ascertained, must be credited on the contract sued on, and that thereafter appellants must look to Faires for payment of the rents found to be due by him; and so the parties all understood and acted upon the contract until about the time this suit was brought.

Mr. Hill, the lawyer who drew up this contract, testified as a witness on the trial of this case, that the contract was left with him or in his possession, “ so that when Jones and Mr. Faires had settled the amount of rents due for 1886 and 1887, the amounts could be endorsed upon the contract in accordance with its terms; that Jones has made no endorsement, nor has he directed any endorsement made on the contract of the amount due by Faires to Mm. That in the spring of 1887 he called on Mr. Jones, at the instance of plaintiffs, to know whether he and Mr. Faires had settled upon the amounts of the rents for 1886 and 1887, and he told me that they had not.” That about a week before this suit was filed he made a formal demand on Jones to comply with his contract, when Jones replied, “ I can do nothing; * * * I will see my lawyer.” That in July, 1887, Mr. Faires called in his office, and said that he “had received a letter from Dr. Blakemore, urging him and Jones to settle, and saying that he was in need of some money.”

This suit was filed March 26, 1888.

Appellant J. H. Eouth testified, that appellee, Jones, was present when the contract was prepared and signed. That the contract was left with Mr. Hill, in San Angelo, “so that when Mr. Jones and Mr. Faires had made settlement of the rents due from Mr. Faires to Mr. Jones for the years 1886 and 1887, Mr. Jones could have the amount endorsed upon the contract. Mr. Jones knew that Mr. Hill would hold the contract for the endorsement of the amount due when he and Mr. Faires should settle.”

It is thus seen that the appellants and the attorney who drew up the instrument sued on construed the instrument as we have done. That is, that Jones must have a settlement with Faires, and ascertain the amount due him, and have the same endorsed upon the contract before he is released; and that thereafter appellants must look to Faires for payment of that amount.

Appellee, Jones, himself was upon the witness stand, and did not in the slightest degree on this point contradict the statements made by appellants and the witness Hill, who drew up the contract, and held it awaiting the settlement and for the endorsement to be made thereon.

And as further proof that appellee, Jones, so construed the contract sued on, prior to the filing of this suit he did not deliver or offer to deliver up to appellants his lease contract made in writing with Faires, but retained it in his possession, and attached it to his pleadings in this case; .and prior to this suit attempted to arbitrate the matter of difference between himself and his tenant, Faires, and instead of an effort to ascertain the amount due for rent for the year 1887, he coupled with his claim for rent a demand for damages to fruit trees, pasturage, and other matters, amounting in all to $1955. This effort to arbitrate went on in court for sometime, and was finally abandoned.

It is further seen that no transfer was ever endorsed upon the lease contract held by Jones and attached to his pleadings until after appellants announced ready for trial; and then coupled Ms endorsement and transfer with the demand that appellants pay him the difference between his $1955 account on Fairies and the $1000 due by him to appellants — or in other words, the transfer thus made was not an unconditional transfer of the rental contract on Faires, or of any ascertained indebtedness due by Faires to Jones.

Delivered December 6, 1893.

We have construed the contract according to its reading; and if there is any ambiguity about it, our construction is fully sustained by the acts of the parties to it, and by the construction placed upon it by them at all times up to the trial of this case.

2. As to the second question, we think there is no matter of fact to be ascertained in this case which the appellee has not had ample time and opportunity to present to the court upon the real issues in the case. Rev. Stats., art. 1048.

3. As to the claim for the credit of $199.90, we believe this was not named in the briefs filed by either party, and was not before called to our attention. (Appellee’s brief has disappeared from this record since we rendered our opinion.)

It is true, however, that in July, 1887, Faires left with Hill a claim for collection for $199.90, and told him to collect and send to Dr. Blake-more; saying that he had received a letter from Dr. Blakemore urging him and Jones to settle, and saying that he was in need of money. This amount Hill collected and sent to Blakemore, which Blakemore says he received the latter part of August, 1887. The contract sued on should foe credited with this amount as of August 31, 1887; and our former judgment is so reformed.

The judgment of the court below is reversed and here rendered for appellants for the $1000 sued for, with 10 per cent interest thereon from the 30th day of July, A. D. 1886, less the credit of $199.90 paid August 31, 1887. The appellants to pay the cost of this motion, but recover cost of appeal.

Reversed and rendered

Chief Justice Fisher did not sit in this case.