#### J. *B.*Campbell & *Co. v.*Bill Nicholson.

(No. 3236.)

Appeal from Washington County.

Eddins & Ewing, counsel for appellant. Searcy & Garrett, counsel for appellee.

Opinion by

Davidson, J.

§ 288. *Variance between note and mortgage made to secure it; effect of.*This suit was brought by J. B. Campbell, a merchant doing business under the style of “ J. B. Campbell & Co.” in Washington county, Texas, on the 11th day of October, 1890, upon a promissory note for the sum of $81.91, executed by said Nicholson to said Campbell & Co. Said note contained a mortgage lien upon two bay mares, and, in addition thereto, appellant sought to foreclose a chattel mortgage upon said two mares, which had been executed by said Nicholson to said Campbell & Co. to secure said indebtedness. Ap*498pellant sued out a writ of sequestration, and had the same • levied upon the two mares, which were alleged to be worth $60 each, or $120 together. On October 21, 1890, appellant recovered a judgment in the justice’s court against appellánt for $87.91 with interest from that day at eight per cent., together with a foreclosure of the mortgage lien upon said two mares. Appellee appealed to the county court, and there the appellant, on March 20, 1891, recovered a judgment for $96.11, with interest from that date at eight per cent., from which Campbell appeals;, this being a judgment on the note alone, and without foreclosure of his lien on the mares. The court confined the plaintiff’s recovery to the amount of the note sued on, with interest, and excluded from the consideration of the jury the plaintiff’s right to foreclose the mortgage embodied in the note sued on, and also his chattel mortgage, and the court charged the jury that appellant could only recover the amount of the note, with eight per cent, interest thereon from its maturity. It was shown by the testimony in the case that the note and mortgage were executed on the 21th of November, 1889, at the same time, and constituted one and the same contract. The note did not stipulate for any amount of interest, but in the mortgage the appellee agrees to pay twelve per cent, interest, and because of this seeming variance between the mortgage and the note the court refused to permit the mortgage to be introduced in evidence. This ruling of the court was clearly erroneous. The two instruments were one and the same instrument, each a part of the other, having been executed contemporaneously. “ It is a well-established rule that two deeds or writings executed at the same time and between the same parties, and in reference to the same subject-matter, are to be taken as parts of the same contract, and as forming one entire agreement.” [Howards v. Davis, 6 Tex. 174.] The court erred in excluding the chattel mortgage executed by appellee to secure the payment of the note. *499[2 Civil Cas. Ct. App., § 531; McKelvain v. Allen, 58 Tex. 387; Horne v. Chatham, 64 Tex. 41; James v. Adams, id. 198.] Because the court erred in not giving the appellant, Campbell & Co., a decree foreclosing his mortgage, the judgment is here reformed, and is rendered in favor of appellant against the appellee for the sum of '$87.94, — the amount of the promissory note sued on,— together with twelve per cent, interest upon the same from the maturity thereof, to wit, the 1st day of January, 1890, and a foreclosure of his mortgage lien upon the two mares branded HOLT, described in his note and chattel mortgage, and all costs in this behalf expended, for which execution may issue.

January 20, 1892.

Reformed and rendered.