Rose v. McCracken (20 Tex. Civ. App. 637, 1899)

HUNTER, Associate Justice.

The conclusions of fact found by the District Court are adopted by us, and are as follows:

“1. I find that on August 26, 1892, the defendant, A. T. Rose, executed and delivered the note sued on, the same showing that it was made at Hillsboro, Texas, and thereafter the same was indorsed by Julia A. Rumage.and husband, J. D. Rumage, to the plaintiff, and that plaintiff is now the owner and holder thereof.

“2. That said note was given for part of the purchase money for the land described in plaintiff’s petition.

“3. That the note matured on the 1st of January, 1897; that on the 8th of January, 1897, there was paid on said note the sum of $934,32, and the time of payment thereof was extended until January 1, 1898.

“4. That on the 8th day of December, 1897, the note sued on was in the hands of Haney & McKinsey, attorneys for plaintiff, for collection, and on said day they wrote to A. T. Rose, the maker of the note, at Austin, Texas, where the said Rose resided, that they, Haney & McKinsey, held the note for collection, and that he, Rose, could send the money and release of lien to First Rational Bank of Weatherford, Texas, with instructions to pay over the money when said release was properly signed and acknowledged and the note delivered to said bank; that this letter was received by Rose and by him sent to T. E. Tomlinson, at Hillsboro, Texas. That on the 27th of December, 1897, the said Tomlinson wrote to Haney & McKinsey, in reply to theirs of the 8th, that if they would send the note to Citizens Bank of Hillsboro, he would pay off and discharge same. That the said Tomlinson then, as the agent of said Rose, had money in said bank to pay off and discharge said note, principal and interest, and has ever since had in said bank enough money to pay same. That if said note had been presented at said bank at maturity or any time thereafter, the same would have been paid, both principal and interest due up to the 4th of January, 1898.

“5. I find that on the 5th of January, 1898, and after they received the letter from Tomlinson, they, Haney & McKinsey, sent said note, with draft attached thereto for $601.90, that being the amount of principal and interest due on said note and 10 per cent additional as attorney’s fees thereon. ' That the said Tomlinson as the agent for Rose refused to pay anything as attorney’s fees, but was willing and ready to pay the principal and interest due on said note, and offered to pay same, but refused to pay the attorney’s fees. That said note was then returned to Haney & McKinsey, and they instituted this suit.

“6. I find that since the institution of this suit the said Tomlinson, as agent for Rose, deposited with the clerk of this court the sum of $551.70 for the plaintiff, in satisfaction of the note sued on, which sum is now in the hands of said clerk. T find that since the 4th of January, 1898, the plaintiff, through his attorneys, refused to deliver up the note unless attorney’s fees were paid.”

Hpon these facts the learned district judge conc.iuded as follows: “The fact that the note was made at Hillsboro and so showed did not make the same payable there, and the plaintiff was under no obligations to send the same to Hillsboro for collection; and as the defendant Rose knew the note was in the hands of Haney & McKinsey for collection before the same was due, and the defendant failed to pay the same to Haney & McKinsey or to the plaintiff before maturity, and as said note was then in the hands of Haney & McKinsey, attorneys, for collection, and as same has been sued on, the defendant is liable not only for the balance of principal and interest, but is liable for attorney’s fees; and an offer to pay same at Hillsboro, if plaintiff would send the note there, would not defeat the plaintiff’s right to recover attorney’s fees, and plaintiff is entitled to recover the balance due on said note, and attorney’s fees, with a foreclosure of his lien.”

To these conclusions we add the following:

The note sued on is in words and figures as follows:

"$1000.00. Hillsboro, Texas, Aug. 26, 1892.

"On Janv. 1st, 1897, after date I promise to pay to Julia A. Rumage or order one thousand dollars, with interest at the rate of 10 per centum per annum from date at the-, the same being in part payment of 200 acres of land out of--, to secure the payment of which amount the vendor’s lien is retained upon the hereinbefore described property. If this note is not paid at maturity, and is collected by suit or attorney, ---further promise to pay ten per cent additional for attornev’s fees.

"A. T. Rose.”

The first assignment of error is as follows: "The District Court erred in its conclusion of law herein in holding that defendant was liable for attorney’s fees upon the note sued on herein, because, being dated at Hillsboro, Texas, and no place of payment being named, that became prima facie the place of payment, and the court’s conclusion of fact number 4, and the evidence, shows that defendant Rose had the money at Hillsboro with which to pay said note in full on the day of its maturity, and would have paid it, which facts were known to plaintiff, and plaintiff’s failure or refusal to send the note to Hillsboro was for the purpose of collecting attornejr’s fees.”

Under this assignment appellant’s counsel make the following proposition : (