LAND NOTE. "$960. "BROWNWOOD, TEXAS, September 17, 1887.

"One year after date I promise to pay to the order of Dan T. Munn, at Brownwood, Texas, $960, with interest at the rate of 8 per cent per annum, payable annually, from date until paid. This note is secured by vendor's lien on 1280 acres of land, all of the John Daniels survey, in Brown County, Texas, this day conveyed to me by D.T. Munn; and if this note be not paid in full at maturity, and if suit be instituted to enforce collection of the same, then I do hereby also agree to pay 10 per cent on the amount of principal and interest of this note due when said suit is instituted, to cover the expenses of said collection, which said 10 per cent I do agree shall be included in the judgment which may be rendered on this note.

[Signed] "J.L. VAUGHN."

3. In the due course of business and before maturity, this note was by said Dan T. Munn transferred and endorsed to the plaintiff, William Hermes.

4. This suit was instituted against J.L. Vaughn, October 13, 1888, and Brooke Smith was made a party defendant September 2, 1889.

5. In the latter part of October or first of November, 1888, and after the suit had been instituted against Vaughn, defendant Brooke Smith bought the land from Vaughn, and agreed with Vaughn that he would assume the payment of the foregoing note, and another of like import, due a year later. At the time of this purchase Smith had no actual knowledge of the institution of this suit, and had the money ready and desired to pay the note and one year's interest, and wrote to Dan T. Munn to that effect, but failed to find who held the note until February 8, 1889. Smith did not receive his deed nor pay Vaughn anything on the land until January 3, 1889.

6. February 8, 1889, defendant Smith tendered plaintiff's attorney, J.T. Duncan, in Brownwood, Texas, $1036.80, and demanded a surrender of said note, which said attorney then had in his possession as *Page 610 plaintiff's attorney in this cause. Said Duncan declined to accept said amount and surrender the note, but offered to receive the money and credit it on the note, which Smith declined. Smith paid into the court register at the trial $1036.80.

7. Said note was not in Brownwood, Texas, at the time of its maturity, nor at any other time until February 8, 1889.

8. It was not shown that Vaughn had the money to pay the note at maturity, or that he desired to pay it, or tender payment, in Brownwood, Texas, or elsewhere, at the time of its maturity, or any other time; the only testimony on this subject being a statement by Brooke Smith, as a witness, as follows: "If this note had been presented for payment in Brownwood at the time it became due, it would have been paid promptly. I was at that time cashier of the First National Bank of Brownwood, and Vaughn did his banking business with me."

9. After the maturity of the note, and before the institution of this suit, the plaintiff had a letter written to Vaughn, addressed to Brownwood, Texas, which the testimony indicates he received, asking if he wanted the note sent to Brownwood for payment. To this letter no reply was received.

Opinion. — Appellant instituted this suit against appellee J.L. Vaughn, and sought a recovery upon a promissory note, and a foreclosure of a vendor's lien on 1280 acres of land, in part payment for which the note was executed. After the institution of the suit, Vaughn sold the land to appellee Brooke Smith, who agreed with Vaughn to pay the note now in suit. The note stipulated for 8 per cent interest from date, and 10 per cent attorney fee if sued on after maturity. The case was tried two years after maturity of the note, and a verdict and judgment rendered for appellant for the principal of the note and one year's interest; and the costs were taxed against him. From this judgment appellant has appealed, and contends, that according to the uncontroverted facts disclosed by the record, he is entitled to judgment for the principal of said note, interest thereon at 8 per cent per annum from date, and 10 per cent attorney fee.

This contention must be sustained. The note sued on, signed by appellee Vaughn, and which appellee Smith agreed to pay, fixes their liability. By its terms they are required to pay interest from date to the time of payment of the principal, and 10 per cent attorney fee if sued on after maturity. This note is not made payable at any particular bank, office, or other place in Brownwood. It is a negotiable instrument, and Vaughn executed it, knowing that it might legitimately pass into the hands of a third person; and as against such person (or the original holder) the payment of the full amount of interest and attorney fee can not be avoided, unless a tender, or the equivalent of a tender, is shown. This was not done. It is true that the note was not in Brownwood when *Page 611 it fell due, and therefore no actual tender could have been made at that place. If the evidence had gone further, and shown that Vaughn had a residence or place of business or agent in Brownwood known to appellant, and had the money there and desired to tender payment of the note and interest at maturity, and that the residence of the payee was unknown to Vaughn, the case might be different. But it was not shown with any certainty that he had money to pay it; and there is an entire absence of any evidence tending to show that he desired to pay it. Appellee Smith testified, that Vaughn did his banking with his bank, and if the note had been presented for payment in Brownwood at maturity, it would have been promptly paid. If this was sufficient evidence of ability on Vaughn's part to pay the note, it was no proof of a desire to do so.

Payment of a matured obligation upon demand is no proof of a desire to tender payment if not demanded. Men often pay their debts upon demand, when it would be greatly preferable to them not to do so.

The suit was rightfully instituted, and the evidence did not show that Vaughn has or had any right to resist the payment of the full amount of principal, interest, and attorney fee; and Smith, having agreed to pay the amount Vaughn legally owed on the note, is liable to the same extent that Vaughn is. And this is true, whether Smith knew that the note had been sued on, and the amount of indebtedness thereby increased, or not.

If notice that the suit had been instituted was necessary to bind Smith, then, as he bought pendente lite, the law charges him with notice.

On the questions which determine the rights of the parties, there is no conflict in the testimony. We see no reason to suppose that the case has not been fully developed, and therefore, as requested by appellant, the judgment will be reversed and here rendered for appellant for the full amount of the principal of the note and interest thereon to this date, and 10 per cent on the amount due when this suit was instituted as attorney fee; and for a foreclosure of the vendor's lien on the land; and all costs will be taxed against appellees.

Reversed and rendered.

ON MOTION FOR REHEARING.

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