Antone v. Swenker

283 S.W. 651, 1926 Tex. App. LEXIS 1140

Opinion

WILLSON, O. J.

(after stating the facts as above). The main-contention presented by the assignments in appellant’s brief is that the trial court erred when he construed the contract evidenced by the three written instruments referred to in the statement above to -be one binding appellant in any event to pay appellee $2,250 as specified.

In construing the meaning of the contract, it was the duty of the court to give controlling effect to the intention of the parties. What their intention was was a question of law, if it clearly appeared from the language they used; 'otherwise it was a question - of fact, determinable from pertinent evidence, as any other fact would be. Looking to the language of the instruments evidencing the contract, we think it must be said to be doubtful whether the parties intended that appellant should ever become and be liable to pay -appellee $2,250 or not. If it was, then the question the trial court had to determine was one of fact, and the question for us to determine is as to whether there was testimony to support the court’s finding. We think there was such testimony, and therefore overrule the contention specified.

It appeared from the instrument last referred to in the statement above that appellant was “indebted” to appellee in said sum of $2,250 on account of an interest in a printing plant which she sold to him. It appeared from the note sued upon that the makers thereof had “the option (quoting) at any time to retire or pay this $2,250 note if they so desire, and discontinue paying interest.” And it appeared from the trust deed that it was to secure the payment of the note, and that the person named therein as trustee, in case of “default in the payment of four successive payments mentioned in said note, “was to sell the real property therein described to the highest bidder, and, having received the proceeds of such sale, was “to apply same (quoting) to the payment of said note, the interest thereon accrued, and the expense of executing said trust,” etc. We think the parts specified of the instruments referred to indicated the intention of the parties to be as determined by the trial court.

If the conclusion reached, to wit, that it does not appear that the trial court erred when he construed the contract as one binding appellant to pay the $2,250, is correct, then, of course, that court did not err when he foreclosed the trust deed, ordered a sale of the property it conveyed, and directed the application of the proceeds to the payment of the sum he adjudged in favor of appellee. For, evidently, the intention of the parties to the trust deed was to secure the performance by the makers of the note sued upon of their obligation to appellee.

We think there is no error in the judgment. Therefore it will be affirmed.