J. E. Garrett et al. v. Interstate Bank et al., 79 Tex. 133

GAINES, Associate Justice. This suit was brought by E. W. Taylor and P. T. Norwood, partners doing business under the name of the Interstate Bank, to recover of appellant Garrett as maker and. appellant Dillard as endorser of a promissory note, and to enforce a vendor’s lien upon a certain town lot for the purchase money of which the note was given. Appellee Whitaker intervened, alleging that he was the owner of another promissory note executed by Gari'ett for the purchase money of the same lot, and prayed judgment accordingly.

The plaintiffs and intervener recovered judgments upon their respective demands, and obtained decree enforcing the lien upon the lot. The writing offered in evidence by intervenor reads as follows: “$100. Texarkana, Texas, 4—2, 1888. “On or before July 1st, 1888, I promise to pay to the order of Benj. Whitaker the sum of one hundred-, with interest at the rate of 10 per cent per annum from date hereof until paid, for value received. This note is given in part payment of the purchase money for lot (11) eleven, in block I, Tilson’s & Pitcher’s addition to Texarkana, Texas, this, day deeded to me by H. W.

Dillard; and for the payment hereof, together with the interest hereon, according to the terms and reading hereof, a vendor’s lien is hereby acknowledged; and in case of legal proceeding on this note I agree to pay 10 per cent of the amount as attorney fees.” It is claimed that this instrument is void, because the blank leaves it uncertain what was to be paid.

But if the words “pay the sum -of,” “purchase money,” etc., in the note were not sufficient to show that money was to be paid, or if in such a case we would not be authorized to conclude that the sum to be paid was one hundred dollars—that is to say, one hundred of the “units commonly employed in the United States in reckoning money values”—the sign and figures “$100” in the margin are not to be mistaken. They are to be looked to, and show that “dollars” was the word omitted in the body of the note, and that the omission was unintentional.

It is also claimed that it was error to render a decree enforcing the vendor’s lien, because the contract of sale from which the lien was alleged to have sprung was not proved. Each note recited that it was given for a part of the purchase money of lot 11, in block I, in Tilson & Pitcher’s addition to Texarkana, Texas, “ this day” sold by H. W. Dillard to J. E. Garrett. The notes were introduced in evidence, and if each note stood by itself, there is no question but that this was sufficient proof of the sale. But the plaintiffs’ note is dated March 28, 1888, and interveuor’s is dated April 2 of the same year.

Bow since each note acknowledges a sale on the day it was executed, it is apparent that there is a discrepancy in the. evidence. But it is highly improbable that Dillard after selling the lot to Garrett on the 28th of March sold it to him again on the 2d of April.

The recital in each of the notes that it was given for a part of the purchase money of the lot, with the other circumstances suggested by the face of the writings, we think sufficient to authorize the court to conclude that there was a sale on the 38tli of March, that Whitaker’s note was given for a part of the purchase money promised to be paid in that transaction, and that the words “this day” in that note were inserted through mistake.

Most likely Dillard after the sale, in consideration of some existing indebtedness or of some new contract, agreed to transfer one of the notes to Whitaker, and caused the note to be made directly to him in pursuance of the 'arrangement. Delivered December 16, 1890. It is assigned that the court erred in enforcing auy lien in favor of Whitaker, because it was not alleged in his plea of intervention. The inter venor did allege that “ the note was given in part payment for the purchase money for” the lot, describing it.

From this the law implies a lien in favor of the holder of the note, and it was not necessary to allege the legal conclusion. A foreclosure of the lien was prayed for. If defendants had desired a more specific allegation in reference to the contract of sale they should have excepted specially to the plea of intervention upon the ground that the averment was too general. There, was no error in foreclosing the lien for the attorney fees. Neese v. Riley, 77 Texas, 348. The judgment is affirmed. Affirmed.