Barringer v. Wilson, 80 S.W. 994

80 S.W. 994 | Tex. | 1904

Certified question from the Court of Civil Appeals for the Fourth District, as follows:

"In the above cause pending on appeal in this, the Court of Civil Appeals for the Fourth District of Texas, a question of law arises which this court considers itself required by law to submit to the Supreme Court for adjudication, because of the decision of the question by the Court of Civil Appeals for the First District apparently different from the conclusion we now reach thereon (Kennon v. Bailey, 15 Texas Civ. App., p. 28, which decision appears to be later than any decision by the Supreme Court on the question). The court having so directed, I accordingly certify to your honorable court for decision the question as follows:

"Explanation. — The note sued on by Wilson, with indorsements, is as follows:

"`$200.00 San Antonio, Texas, 1-15-1901. — On the 18th of May, 1901, for value received, I, we or either of us promise to pay to the order of myself, at the office of the City National Bank, San Antonio, Texas, two hundred dollars in United States gold coin of the present standard weight and fineness, with interest thereon after maturity at the rate of ten per cent per annum, payable annually, and ten per cent attorney's fees if placed in the hands of an attorney for collection after maturity, or suit is brought thereon. A.S. Smith.'

"The same being indorsed in the following order: `A.S. Smith, Victor C. Barringer.'

"N.T. Wilson testified as follows: `By N.T. Wilson, plaintiff, over the objection of defendant: That the defendant Smith came to see him in reference to this loan, told him he could obtain defendant Barringer as security for the amount; that the note was then filled out, and Smith left with it, to secure Barringer's name; that some time afterwards, witness thought about two months, Smith returned with the note indorsed by Barringer, and that the loan was then made.'

"`By the defendant: That this suit was filed July 19, 1902, and that more than three terms of court were had after the note's maturity and prior to this date.'

"The above is the entire statement of facts.

"Question. Can the relation of Barringer as indorser, as appears from the note, be by the payee contradicted, or shown to be otherwise, by parol testimony?"

This precise question was decided in the case of Heidenheimer v. Blumenkron (56 Tex. 311), in a carefully considered opinion by Chief Justice Gould. That decision has never been overruled or modified by any decision of this court, and probably accords with the weight of authority elsewhere. 1 Daniel on Neg. Inst., secs. 707, 717, 718, 723. The distinction pointed out by Judge Gould between that case and others referred to by him, such as Cook v. Southwick, 9 Tex. 615, may have been overlooked by the courts of civil appeals in the cases relied on by appellee, neither of which came to this court. Kennon v. Bailey, 15 Texas Civ. App. 28[15 Tex. Civ. App. 28]; Biessner v. Weekes, 21 Texas Civ. App. 14[21 Tex. Civ. App. 14], 50 S.W. Rep., 138. Whether or not there was ground for distinguishing those cases from Heidenheimer v. Blumenkron it is unnecessary to determine, since that case is, in all essential particulars, like this and must control our decision.

The question is answered in the negative.