Citations
- 89 Tex. 567
Full opinion text
OPIÍTIOS OE MAJORITY OE COURT OE CIVIL APPEALS.
STEVENS, Associate Justice.
Appellee W. B. Worsham, S. Davidson, W. H. Featherston, and C. W. Easley, all resident citizens of Clay County, instituted this suit against appellant, also of that county, upon his promissory note dated May 20, 1892, payable to their order, in the sum of $857.50, besides interest and attorney’s fees. They also sought to foreclose a real estate mortgage or deed of trust, dated May 26, 1892, and executed to better secure this note.
Appellant admitted their right to recover, unless it should be defeated by the matters set up in his plea of failure of consideration. The amount of the note sued on was equal to the total amount of principal and interest of two other notes previously executed by appellant, and referred to below, one for $700 and the other for $100. A mortgage was made contemporaneously with the execution of the $700 note, to secure its payment, upon the same property afterwards covered by that of May 26, 1892. ' ■
The mortgage declared on contained the following recital: “That 1, L. C. Barrett, of the County of Clay and State of Texas, for and in consideration of the sum of $857.50, to me in hand this day paid by Worsham, Davidson, Featherston, and Easley, of said county and State", and for and in consideration that they have this day and do by these presents release me of and from the payment of certain obligations due from me, to the amount of $800 and interest, payable to the Bed Biver and Southwestern Bailroad, this being the real and only consideration, together with the debt and trust hereinafter mentioned, and that by the acceptance of this obligation the said C. W. Easley, trustee, together with the said Davidson, Worsham and Featherston, do hereby release a certain trust deed to secure $700 and interest, dated 5th day of February, 1891, covering the lands and lots hereinafter described, to the said Easley, trustee, * * * which said trust deed was made to secure $700 and interest, the real consideration of this instrument, have granted, bargained, sold,” etc.
The contention of appellant was that the last note had been obtained by means of false and fraudulent representations, to the effect that appellees had made arrangements with the Union Trust Co. to procure monéy with which to complete the building of a railroad from the town of Henrietta to the town of Archer, alleging that he had given the note upon that representation as a matter of accommodation to enable them to procure the money to complete the road. He further alleged that he had been fraudulently induced to sign the previous notes upon the faith ■of their representations and promises that the railroad 'between the points named would be speedily built, or at least within a reasonable time, by them and the Bed Biver and Southwestern Bailroad Company. Appellant also reconvened for the value of his services in assisting to raise the bonus.
We find the following conclusions of fact:
1. That appellees, with E. H. East, of Archer, and others, in the latter part of the year 1890, obtained a charter under the name above indicated to construct and operate a railway from the Bed Biver to the Concho Biver, through Clay, Archer and other counties.
2. That in the early part of January of the following year they made a proposition in the name of said Bed Biver and Southwestern Bailway Co. to the citizens of Henrietta, which was accepted by appellant and other subscribers, in the terms following: