Commercial Inv. Co. of Uvalde v. Graves

Kanner, Tex.Civ.App., 235 S.W. v. appellee. support authorities 248. These following cases appellants cite the Merlin Supreme of Texas: Smith, 351, 353; Ross Manning, 2 Tex. 327; Nel Am.Dec. 19 Tex. Smith, 22 Tex. P. Merrill son v. C. 558. Gregg Johnson, concededly not ne- are certificates Therefore, instruments.

gotiable appellants by the proposition contended for of the Su- decisions is controlled duty our It is State. preme Court of this qf cause This rule decision. to follow that for such remanded must be reversed

error. are discussed questions Other not neces- parties, but

briefs condition sary for decision the record. discussed For the errors reversed court will be

of the trial remanded. cause UVALDE INV. OF CO.

COMMERCIAL al. GRAVES

No. 10528. Appeals Texas.

Court of Civil

San Antonio.

May 1939. Sept.

Rehearing 1939. Granted

Rehearing Overruled Nov. parties.

made- defended W. Vanham J. ground that he was accommoda- tion endorser of the note. jury only The trial was to one and .a special submitted, issue was to-wit: you “Do preponderance find from a the evidence that W. Vanham J. evidence, the note in July 12, dated at the'instance benefit of the Commercial National Bank for the sole purpose of enabling said Bank to use note as collateral in obtaining a loan from Reconstruction Corporation Finance understanding with the Commercial National Bank that said Bank would hold payment said W. Vanham for J. said note?” The answer was in the af- firmative. By way explanation, sued on given in renewal the note dated July 12, 1932, and the Commercial Invest- Company, plaintiff below, pri- ment awas corporation, vate organized bank- without ing privileges liquidate the affairs of the Commercial National taking over all the assets of possession came into of the note herein. keeping In jury, with the verdict of the denying rendered re- covery Vanham; against W. the Com- J. pany given judgment against the sur- viving wife and heirs C. R. Graves for a foreclosure the deed of trust lien the real estate described therein. Company Commercial Investment prosecuted appeal complaining of the- failure of the trial give court to personal judgment against W. Van- J. Fuller, Jr., Ditzler H. Wm. Jones J. ham. Uvalde, appellant. both of Appellant’s first assignment of error is Fenley, & B. Morriss Morriss and G. : as follows Antonio, Jr., appellees. of San all “The Judgment of the Court in this case contrary to the law and Plaintiff’s Mo- MURRAY, Justice. tion for an instructed verdict should have This suit was instituted granted Judgment Commercial been rendered Uvalde, Company Texas, Investment Appellee, Vanham,' W. private corporation, against R. C. Graves the said W. as a matter of Vanham, upon promis- law, a certain was not and could be an accom- January 12, 1933, sory note dated for the modation maker on under the $4,029.18, sum fore- developed facts and circumstances for. closure of deed trust certain trial this case for in order that might belonging Graves; to C. R. real estate himself of the- defense of an avail accom- having trust deed executed modation maker under Article Sec- payment secure the Negotiable Graves this note. 29 of the Act, Instrument was filed the suit C. R. recipient After Graves died he must be the surviving law, wife and heirs were sideration deemed valuable in his act McGinnis, 130 Ry. Texas & upon herein N. executing O. Co. v. note sued Lamp Tex. Trapp Plaintiff void of S.W.2d must have been . ton, 1112 anticipated profit, Tex.Civ.App., gain advantage. He and Director Cashier ground of error is this Neither of the Bank at Commercial National upon based Refusal fundamental error. by upon signed he time the note give to an does instructed verdict Plaintiff and the same the note of which present Moore fundamental error. and, being was a renewal said time Krenex, Tex.Com.App., 39 S.W.2d Banking corporation, stock holder said in Meuly Miley, Tex.Civ.App., 15 S.W.2d of said he was in the welfare interested Telephone Valley Cox v. Rio Grande Bank and of the stock owned to the extent Co., Tex.Civ.App., 13 Warren by him in- in he owned an said Co., Tex.Com.App., Houston Oil n property. terest in its This interest was Flewellen, 2d & Damon v. Tex. Ford sufficient make him liable consideration to Com.App., 276 S.W. 903. as execution of said debtor in the Appellant’s proposition reads as second although proceeds were for the follows: use Na- and benefit of said Commercial law, Proposition “As a of having signed tional he said urges necessary, absolutely in it was in order Bank to borrow enable the order for said to be W. Vanham money purpose carrying for the of on its liability upon released from note sued purpose enabling business of and for the by by on Plaintiff reason fact that of the it to continue its business.” conduct maker, he was he an accommodation upon alleged assignment is It based be must with the also an have 2, of No. error reads follows: which payee that he not to liable on be held in this “Under the law and the facts Appellant’s said note and Motion for an case, the said then W. Vanham verdict, set instructed which will be found larger Cashier and also one of the stock- Transcript out on page 49 of the Record holders in the National Bank Commercial herein, follows, is which Motion to-wit: Uvalde, Texas, signed of he at the “ ‘Now comes Commercial Investment notes in no question, said under could Company Uvalde, Texas, in of Plaintiff circumstances accommodation have an cause above entitled and numbered that, maker on said for the reason grant Plaintiff and moves the Court upon testified to Vanham the said W. judgment against for in this cause its debt case, ” * * * parties. “Because in overruling the Court erred Plaintiff’s Motion for an instructed ver- The trial court did not err in overrul- dict herein for the reason the evidence that ing appellant’s motion for an instructed undisputed is that no was ever verdict. made with Commercial Investment Com- Appellant’s proposition third does pany, Plaintiff in case of The Com- not it upon any show to assign be Uvalde, Texas, mercial National Bank of ment of error in contained the motion for agreeing Defendant, not hold to the otherwise; a new trial or it is multifari on liable note. by ous and is not followed a statement “Because is not one scintilla of required by such is Ap as Court of Civil in evidence record of the this case to the peals 31, also, See, Rule 142 xiii. S.W. effect The that Commercial National Bank Mortgage Union McDonald, Co. v. Tex. Uvalde, Texas, ever agreed Civ.App., 506; Schaff Fanch Defendant, to hold the said W. Van- er, 861; Tex.Civ.App., 215 Pate v. S.W. ham, liable said note.” Gallup, 1151; Tex.Civ.App., 195 S.W. Irv by We therefore this assign- take that it Ry. Co., ing v. Texas & Pac. Tex.Civ. ment of error intended to con- App., 157 S.W. Union Tele Western tend that there was no evidence to show graph Golden, Tex.Civ.App., v.Co. 201 S. that the bank agreed not hold to Vanham W. 1080. note, liable and that therefore the authority is to granted This court without court should have mo- error, the be fun tion for consider an same an unless instructed verdict. by proper assignment or raised damental a The evidence shows that the note dated presented of error in brief. the Greenwall 12, July 1932, originally signed only was Tex.Com.App., 14 Ligon, by R.C. Graves and that Vanham Johnson, Tex. Clonts it an as accommodation to the to Bros., Inc., Devlin v. Heid Tex.Civ. enable the Bank to use the note as col- App., 21 S.W.2d 746. lateral in securing loan from the Recon- The is affirmed. struction Corporation, Finance and that it was understood there was no liability to be Rehearing. Motion On as between Vanham and the Bank. The haveWe that were in concluded we on, January dated holding error in that evidence herein nothing more than a renewal of the obliga- appellee is to sufficient show that was an tion in July 12, contained the note of accommodation endorser the note in is There supporting evidence the finding appellee suit. If had not been connected of the that Vanham anwas accommo- bank, officer, either an as director dation endorser the note for the sole stockholder, been, he .have under would purpose lending payee his credit to the facts, an accommodation endorser of note. Under such circumstances But, in note. view the fact implied promise there would be an as be- officer, an and director stockholder original parties to tween hold the in cannot here be considered Appellant endorser. accommodation is the an as accommodation endorser. original payee in successor the note. same stockholders It has After a same careful consideration of the original payee, authorities, definitely officers and took we have decided that payee. assets Appel- over all the is of this it the settled law State that where after past took it officer, lant due an director and stockholder quite bank, as seems either es- signs bank note of clear defendant topped im- endorser, validity questioning with the view of from maker and to en- this note proving By as an tak- the assets of the bank bank. asset n able -to borrow part money, ing not in law it he is reopening bank signer or one of regarded directors, reopen- an accommodation inducing its such n endorser, ing accommoda- note, such the faith holding and of his it out paper. which reports The his banking department to the n such officer, asset, has director stockholder a valid remaining a director it seeing money many years, hank estopped secure he should now questioning which he ulti- validity needs mately the benefit from of his note. bank, receive loan reason such reopening continuing in part bank the consideration for years, many changed business for regarded signature, position, and he cannot be its faith of this and other n signer the note. reopen assets contributed to enable business, continue must authorities this effect numer apparent now hold this note and pp. C. § ous: C.J. other like securities of value would re- no J.S., Notes, page Bills and injury sult serious loss the bank. 939, 244; p. 7 95 A.L.R. Anno Am.Jur. that, Defendant as to creditors concedes seq.; tations v. pages Robertson insolvency, of the bank case of Bank, City Nat. 36 S.W.2d estopped. would be We think' the facts 481; McShane, Tex.Com.App., v. Shaw go beyond shown here that show an 278; Huitt, 50 S.W.2d Barr v. Tex.Civ. estoppel the claim the bank 587; App., Bishop, v. Whiteman well.” 730; Tex.Civ.App., Nat. 289 S.W. Com. Goldstein, Tex.Civ.App., v. 261 S.W. Bank In the case bar the note based Mayfield, Tex.Civ.App., 286 Exum v. upon a consideration at time it was the .S.W. 481. signed by appellee, binding it became a obligation subject and not to the contention though Appellant that even contends paper. that it was accommodation The paper may upon the have based jury finding any not that was consideration, hypothe- long as it was contrary law sideration can- with Reconstruction Finance Cor cated support appellee. not judgment Fi- poration, after Reconstruction that fully paid Corporation was nante upon holdings The above based Commercial National note returned apparent of record facts and fundamental Bank, paper it became accommodation noticed, though in their nature and must be him and the Bank. We overrule between presented in properly not brief. first, contention, because, be note this Appellee contends that inasmuch as upon a based consideration was ing payment appellant the time of and, extended paper, in the second his consent he there the note without was appellant permitted place, having The note contained the fol released. asset some time to remain for lowing provision: “and that consent time appellant transferred to the and to be Bank n asan asset of may payment extended without notice the Bank in a is not now any of the sureties this note.’’ thereof the note is not a position assert that part on the constituted a waiver This This obligation to him. is true binding right his appellee of to be notified notwithstanding fact that Bank payment gave extension of time of insolvent and notwithstand became never payment might officers, consent directors fact ing the Darby Farmers’ State appellant v. may extended. have and stockholders Tex.Civ.App., 253 S.W. National knowledge sur of all the facts full bad Kenney, note, of Commerce Tex. appellee’s signing of rounding n because Home Nat. eyes S.W. the note law Jackson Tex.Civ.App., 185 S.W. Com on a consideration. based was Goldstein, National Bank v. monwealth in Markville is said State Bank What Tex.Civ.App., Sharpe al., Steinbring et 179 Minn. Bank, Tex.Civ.App., 272 National S.W. 757, 759, has pages bearing here. N.W. says: question estoppel “The further, however, urged Appellee contends greatly argu not been only presented, did not consent to the exten- Upon facts here it he ments. sion, but, contrary, sign refused to thereby with- agreement, extension previous- drawing any consent have ly given. in written Having consented stipulation extension of the note payment, if time of doubtful he could However, thereafter revoke consent. having already that the concluded appellee a consideration secondarily surety thereon, not a liable primarily but tension liable. While the ex- signed Graves would be binding appellee, it did not have releasing appellee the effect of from his primary’liability on note. rehearing granted, motion for a judgment trial court reversed here rendered that appellee recover of the full amount of

principal, attorney’s pro- fees herein, for in the vided gether to- costs of this and the court

below.

Reversed and rendered. Wynne Wynne & Wade, and William A. Longview, appellant. all of Grisham, Grisham & Tyler, appel-

lee. WILLIAMS, Justice. Humphrey, appellee, Fred sued C. H. Murray surety as a on an alleged superse- deas bond theretofore executed and filed MURRAY v. HUMPHREY. Russell W. Weaver as ap- No. 5470. pellant Apperson and'one B. as sureties appeal from a Appeals entered in a of Civil Court Texas. styled Apperson suit B. Russell W. Texarkana. al., A, Weaver the District No. then pending in 6124— Aug. 4, 1939. Smith County. The Rehearing Sept. latter Denied brevity mentioned suit will Apperson referred as the suit. Weaver Apperson, mentioned, above were not sued in that both at the institution of the present suit were non-residents and noto- riously insolvent. appeal Apperson suit, perfect- only by Weaver, ed was from a en- decree 12, 1935, tered on October vacation,

wherein the trial court overruled various motions, pleadings and including that of Weaver, to vacate the orders of that court directing the property receiver to sell the involved and ceiver’s sale into R. order confirming re- Tolbert; and where- Weaver, Apperson the court denied intervenors recovery property and taxed all costs In them. this same decree as therein worded, the court “dissolved and vacated the trial of notes this he individually, Joe in order to Na- enable the Commercial Estate C. R. Graves foreclosure of Texas, Uvalde, tional to obtain notwithstanding verdict of its lien money from the Reconstruction Finance jury undisputed because facts and Corporation purpose keeping for the Plaintiff the law in case are with the this protecting Bank going his interest not- Plaintiff to a entitle and, therein in order for him to avail to the withstanding the verdict himself of the defense of an accommoda- contrary. tion maker 29 of Ne- under Section “ gotiable Law, 5933, Article Instruments ‘Wherefore, prays the Plaintiff now recipient must this granted judgment Court that it sideration His deemed law. valuable Original Peti- prayed cause for in its paper act in executing must be void on herein.’ file anticipated (cid:127)of Ap- granted. “should have been Also see profit gathered advantage.” Exception pellant’s pages No. Bill Transcript herein.” Record 56-57 appellant’s An examination of mo proposition It this will noted .be tion for a new trial discloses that instruct- appellant’s refers to motion an presented by .ground proposi this error vérdict, copies in a motion for ed full but assignment pre tion and of error was not veredicto fol- judgment non obstante sented to the trial court. We therefore bill of ex- reference to a lows this proposition cannot consider or the al transcript. 57 of the ception pages leged assignment of error which it transcript is found pages of the these supposedly On based. Amended rules for the exceptions complaining a bill of Appeals, of Civil No. Courts overruling appellant’s mo- XXIX; court’s action Stillman Tex.Jur. n No refer- Hirsch, instructed verdict- tion for an 99 S.W.2d 270: Vanham’ n exceptions ence is to and made in this bill claim knowledge trial, the motion new had been that for a which an accommodation maker. days filed before this overruled several p. 259, party In 8 is stated: “The C.J. exceptions approved. bill The for paper whose benefit accommodation proposition states acquires been made rights no assignments of 4. There is error party up set who brief, no assignment of error 3 or 4 want consideration as a defense paragraphs such reference must be to action party, accommodated since motion a new consideration, as between them is no Paragraphs trial. 3 and 4 of motion always a fact which a defense to a suit new trial read follows: negotiable paper the immediate between

Case Details

Case Name: Commercial Inv. Co. of Uvalde v. Graves

Court Name: Court of Appeals of Texas

Date Published: May 10, 1939

Citation: 132 S.W.2d 439

Docket Number: No. 10528.

Court Abbreviation: Tex. App.