Dickson v. Kilgore State Bank , 244 S.W. 392 ( 1922 )

^* Writ of error granted November 22, 1922. It is plain that the judgment should have been in appellant's favor unless the trial court had a right to ignore the finding of the jury that appellant agreed unconditionally to pay interest to October 18, 1921, on his indebtedness to appellee, for his agreement to do that would be a sufficient consideration for the agreement (as found by the jury) of appellee to extend the time of payment of appellant's indebtedness to it and hold the cotton securing it to that date. Benson v. Phipps,87 Tex. 578, 29 S.W. 1061, 47 Am. St. Rep. 128. The theory on which the trial court refused to give effect to the finding was that it was not supported by either appellant's pleadings or the testimony. And clearly it was not, for both appellant's pleading and the testimony was that appellant's undertaking was to pay interest to the time stated only in the event he did not elect to pay the indebtedness before that time. An undertaking on the part of appellant so conditioned was not a sufficient consideration for appellee's promise. Abstract Co. v. Bahn, 87 Tex. 582,29 S.W. 646, 30 S.W. 430; Ellerd v. Ferguson (Tex.Civ.App.) 218 S.W. 605. The question presented therefore is one as to the right of the trial court to ignore the finding. The question was answered in National Insurance Co. v. Humphreys (Tex.Civ.App.) 211 S.W. 811, correctly, we think, when the court said:

"A finding by a jury of a fact, not alleged and not supported by any evidence, though submitted by the court, is a nullity, and can form no basis or support for a judgment."

It follows the judgment is not erroneous, unless the finding of the jury that appellant gave a deed of trust on 120 acres of land to appellee, "or to some one designated by it for its use and benefit," entitled appellant to judgment. It is clear, we think, the finding did entitle appellant to judgment if there was anything in appellant's pleadings and the testimony on which to predicate it. For the finding in effect was that appellant gave appellee additional security for his indebtedness to it, and there is no doubt giving additional security to a creditor is a sufficient consideration for his undertaking to extend the time of payment of the indebtedness. 8 C.J. 438, and authorities there cited. But we are of the opinion appellant's pleadings did not warrant the submission of the issue on which the finding was predicated, and therefore that the trial court did not err when he refused to render judgment in appellant's favor on the finding. It will be seen by reference to the statement above that the allegations in appellant's pleadings amounted to no more than this: That in consideration of appellee's agreement to extend the time of the payment of his indebtedness to it and its promise to not sell cotton belonging to him covered by a mortgage he gave it before October 18, 1921, he conveyed the land to a trustee to secure a loan he procured from one E. C. Oberthier of $2,500, a part of which he paid to appellee on his indebtedness to it. The allegations not only were not that appellant gave appellee additional security for the indebtedness, but they were in effect that he did not — that what he did at appellee's instance was to hypothecate the land to obtain money to pay part of his indebtedness to it, and for other purposes which were of no concern to it. Such allegations did not warrant the submission of the issue as to whether the consideration to appellee for its promise to appellant was additional security to it for appellant's indebtedness or not, and, as they did not, the trial court had a right to treat the finding as a nullity. Insurance Co. v. Humphreys, supra.

The testimony adduced by appellant with reference to his mortgaging the land showed the facts as to that matter to be as he alleged them to be. Those facts, we think, did not show a consideration sufficient to support the alleged undertaking on the part of appellee. Appellee obtained no benefit it was not already entitled to as appellant's creditor, and appellant suffered no injury chargeable to appellee. We have examined the cases cited by appellant as supporting his contention to the contrary (to wit, Slaughter v. Eller [Tex. Civ. App.] 196 S.W. 704; Jones v. Green [Tex. Civ. App.] 31 S.W. 1087; and Heisch v. Adams, 81 Tex. 94,16 S.W. 790), and think each of them is plainly distinguishable in its facts from this one.

There is no error in the judgment, and it is affirmed.