Opinion
Application for writ of error pending in Supreme Court.
December 14, 1915. Rehearing Denied January 6, 1916.
Appeal from District Court, Harris County; John A. Read, Judge.
Action by Lewis E. Sampson against J. A. Friedman. From a judgment for plaintiff, defendant appeals. Affirmed.
A. R. W. P. Hamblen and Guynes Colgin, all of Houston, for appellant. A. B. Wilson and Cole Cole, all of Houston, for appellee.
That the nature of the suit, result of the trial in the lower court, and the issues involved, may be readily understood, we make the following statement: On the 22d day of February, 1909, J. A. Friedman, of Harris county, Tex., appellant herein, and appellee, L. E. Sampson, entered into a written contract at Houston, Tex., by which Friedman agreed to convey to Sampson 960 acres of land in Texas in exchange for the conveyance by Sampson of certain property in Iowa. One piece or parcel of the property to be conveyed by Sampson to Friedman was and is known as the "Mill" property, situated in the city of Menlo, in Iowa. It was shown by the contract that at the date thereof Sampson owed a note upon which there was a balance due of $4,000, bearing 7 per cent. interest per annum, due and payable on the 17th day of January, 1909, to one Sanborn, which was an incumbrance upon said Mill property. The contract shows on its face that Friedman assumed the payment of said incumbrance. In performance of said contract, appellee, L. E. Sampson, by deed dated March 26, 1909, conveyed said Mill property to Friedman, which said deed contained a stipulation that the grantee, Friedman, "assumes and agrees to pay" the debt of $4,000 due to said Sanborn. In October, 1909, Sanborn sued Friedman, and Sampson, maker of, the note assumed by Friedman, and recovered judgment against Sampson for the principal and interest of said note, and a foreclosure of his lien upon said Mill property against both Sampson and appellant Friedman. On January 11, 1910, said Mill property was sold under said judgment for $575. After paying costs of suit, the balance of $442.28 was credited on said judgment. On the 16th day of April, 1912, Sampson paid $1,000 on said judgment, and on the 9th day of April, 1913, he paid $3,779.28, balance due thereon. Friedman, who had assumed and promised to pay Sanborn's debt against Sampson, refused to repay Sampson the said sum of $4,779.28 which he had paid in discharge thereof. On the 29th day of September, 1913, Sampson instituted this suit in the district court of Harris county, Tex., against, Friedman, to recover the $1,000 paid by him on said judgment on the 16th day of April, 1912, and for the further sum of $3,779.28 paid thereon, on the 9th day of April, 1913, with 7 per cent. interest per annum from date of said payments, respectively. Among other matters, not necessary to state for the purpose of this opinion, appellant Friedman pleaded the four-year statute of limitations, of both the states of Texas and Iowa, in bar of appellee's right to recover. The case was submitted to a jury, which returned a verdict for appellee Sampson for the sum of $4,779.28, with 7 per cent. interest thereon from date of judgment, for which said sum judgment was rendered for said Sampson, and from which Friedman has appealed.
All of appellant's complaints of the trial and result of this suit may be grouped and briefly stated as follows:
Appellant contends that as he had assumed to pay off the balance of $4,000 and interest due on the note executed by Sampson which was due on the 17th day of January, 1909, he became obligated to pay same on the 26th day of March, 1909, the date on which he assumed its payment, and that appellee Sampson had the legal right to sue him at that time to enforce such payment, and hence appellee's cause of action accrued on the 26th day of March, 1909, and was barred under the four-year statute of limitations on the 29th day of September, 1913, the date on which this suit was brought. That his contract or agreement to pay said debt was to be performed in the state of Iowa, and that the Supreme Court of that state having held that such causes as appellee's in this case accrued at the maturity of the debt assumed, such would be the law governing the trial of this case, and hence appellee's cause of action was barred at the time he brought his suit on the 29th day of September, 1913.
Appellee contends that his cause of action did not accrue, and that he could not have sued appellant thereon, until after he had paid the debt which had been assumed by appellant, a part of which he paid on the 16th day of April, 1912, and the remainder on the 9th day of April, 1913, and that as his suit was filed on the 29th day of September, 1913, no part of his cause of action was barred by any statute of limitation.
The courts of this state have uniformly held that a purchaser, who agrees to pay a note held by a third party against his vendor which constitutes a lien on the land purchased, is not liable on such note in an action by his vendor against him, unless such vendor has paid the note to such third party. Gunst v. Pelham, 74 Tex. 586, 12 S.W. 233; Thomas v. Ellison, 102 Tex. at page 356, 116 S.W. 1141; Gregory v. Green, 133 S.W. 481; Id., 142 S.W. 999; Bexar Building Co. v. Newman, 25 S.W. at page 464. See, also, Ayers v. Dixon, 78 N.Y. 318; Lappen v. Gill, 129 Mass. 349.
Decisions of state courts generally are not laws which control the courts of other states, except in so far as they construe the statute laws of their respective states. Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865; Railway Co. v. Bank, 102 U.S. 15, 26 L.Ed. 61.
Commercial laws, and many other laws of universal application, are not the laws of any particular state, and therefore the court of each state should determine such laws and their application for themselves. Alexander v. Bank, 19 Tex. Civ. App. 620, 47 S.W. 840; Pattillo v. Alexander, 105 Ga. 482, 30 S.E. 644; St. Nicholas Bank v. Bank, 128 N.Y. 26, 27 N.E. 849, 13 L.R.A. 241.
In the case of Pattillo v. Alexander, supra, the court said:
"It follows from the above that it was error to admit evidence showing what construction, based upon the common law, the Supreme Court of Tennessee had placed upon similar contracts."
We think it clear, from what has been said, that the jury was properly charged; that its verdict rejecting appellant's plea of limitation is supported by the law applicable to the case, as given to it by the court, and by the evidence; and that no error was committed by the trial court in rendering judgment for appellee upon the verdict of the jury. Therefore the judgment of the trial court is affirmed.
Affirmed.