*1 y. BANK STATE IOWA CITY FRIAR Thomas, Brantley 30 L. Ed. 271, Hamilton, Kellogg IOWA CITY STATE BANK FRIAR. Dec. 73 Am. Sup. L. Ed. 86. Ct. 110 U. implied (Court Appeals warran think is an We do not of Texas. Paso. April 23, Rehearing, 1914. On any ty equal shall 4, 1914.) June operation, operation, design, the cost of or (§ 139*) 1.TRIAL INSTRUCTIONS Brewers’, etc., Mach. like. Seitz v. —PEREMPTORY —When Authorized. Sup. U. S. L. Ed. 837. Ct. A for defendant rules, we may [9-12] Under the do not believe not be on his uncorroborated testi- mony, proving assign facts material to his defense. iiroperly '. -consider we can cases, Trial, [Ed. Note.—For other see Cent. charge We are of the court. the ments to inclined Dig. 332, 333, Dig. 338-341, §§ § Dec. pleadings insufficient to think the 139.*] particular designating defect of the what 344*)— Bills and Notes Bona Fide complained of, al or machine leged by appellee, Purchaser —Notice defenses. purpose purchaser the for which it was A who has appellant the same consid- have a common knowl had arising eration out of the same say may purpose. edge the We of such chargeable with notice exist- of all defenses jury charge authorizing find for the the ing and takes the possess appellee, subject cer if the machine did notes due. thereto if of them are like, good.qualities suffi tain cases, [Ed. Note.—For other see Bills and jury charge cient. The should Notes, Dig. 866-868; Dig. Cent. §§ Dec. $ defective in that the machine was to find 344.*] cross-petition, alleged in call — (§ 344*) 3. Bills and Notes Bona Fide alleged. ing their to the defects as attention Purchaser —Notice of Defense. respects weight Notes, charge except respect, in some is on identical in as to their serial numbers and appellee have, could of the evidence. If-the containing they no recital that arose out of the pre ordinary diligence, by exercise of same transaction or were based on a common machine, running vented the was its a loss consideration, disclosed on their face facts to simply a authorize with notice that do so. To single common consideration transaction, out of a per recovery the entire season $1.65 and where at the time of the assuming day a was in measure loss due, one of chase he was not a bona prevented within loss have could fide holder. by appellant, the exer If eases, the ice season. [Ed. Note.—For other see Bills and Dig. 866-868; Notes, Dig. Cent. Dec. prevented §§ § ordinary care; cise of could 344.*] loss, so. Under have done should — (§ 357*) 4. Bills and Notes Innocent appellant by if rule announced Security. Holder — Collateral alleged damage by had reason loss collateral, An innocent holder of a note as running per day up against cost of trial, to found for time of which there is valid defense the the amount of the protected only payee, is jury could debt for which it is held as collateral. Certainly there should be some amount. cases, [Ed. Note.—For other see Bills and stop appellant this loss. limit where Notes, Dig. 909-912, Dig. Cent. Dee. §§ § assignee Again, claims to be the 357.*] such, If it is not of the claim sued on. — (§ 497*) 5. Bills and Notes Innocent personally damage Security. occasioned liable Holder —Collateral collateral, warranty. An innocent holder of a note as assignor breach its The claim held against there is a valid defense by may or be abated de payee, has the burden of that his debt damages ; in addition be feated cannot unpaid, amount due assignee, as recovery unless assessed must be restricted to amount party original shown. it was a matter of contract of eases, [Ed. Note.—For other see Bills warranty. The evidence that Notes, Dig. 1448, 1675-1681, 1683- Cent. §§ ap party was not such pellee. introduced Dig. § 497.*] Dee. If the evidence raises the issue as to Harper, J., dissents. C. party orig whether it was fact a warranty, inal then that Appeal jury should be submitted (§ 1170*) and Error —Harmless Instructions. Error — Erroneous finding before would be authorized no issue was made assess, damages We also- a fact assumed in an instruction to based argument appellee think the of counsel for the uncorroborated instruction, party, in the improper, because as- wherein he stated to the fact, material, and, suming that, for'ap in effect found x), of Civil Courts pellant, appellee would have to the costs disregarded. must be of suit. The to do with Appeal 4075, 4098, cost, Error, argument and to use such an Cent. 4540-4545; § 1170.*] calculated to influence them to render Appeal Court; County verdict did. from El Paso A. S. reversed, Judge. Eylar, 'The remanded. Action State Bank *For other oases see and section NUMBER in Dec. &Am. Indexes Series *2 (Tex. REPORTER 167 SOUTHWESTERN 262 tion, and- maturity City, Iowa, payment note was same Franklin Price is executed the note to 282.57, Royal date. M. F. Price and P. E. least the date of the ners named as No. 28781D P.A.K. Company, Texas, No. renewal and to B. R. as, out out interest. or we McD. 7-25-12 McD. three without interest. Company, McD. 5-17-12 tution of Iowa ant, plaintiff appeals. El of as, thirty-four al I or Company No. 28781B P. A. K. or we W. S. Ten Eight Six Third: It held the notes as collateral First: Second: O. W. Croom and HIGGINS, El Company, thirty-four Paso, for interest. as well various not disclose. residing money are notes, company 5-27-12 Paso, promise months after promise sued months after Company, Friar. From a thirty-four promise months after held. The of Iowa given evidenced some of the collateral notes had of Iowa payees dated but how Iowa which read: Iowa of Iowa loaned Iowa P. A. K. deposited J. its and and , $2,000 , money originally in sum of appellee. in renewal of a Company, Name: W. Name: W. S. Address: Address: Address: El Name: W. S. Oity, Iowa, pay payment, May in which in the notes sued Oity, Iowa, Appellant, a $2,000 Oity, Iowa, were of City, Iowa, 06/100 City, 08/100 pay and Oity, Iowa, two date, date, Evidently, parties, aggregating $2,- A. doing much thereof $2,000 a loan of to the date, note of Franklin Price City, Iowa, R. 06/100 Iowa, Affirmed. judgment firm which the collateral as collateral. . 2100 appellant bank, for value covered dollars, $34.06, Goldstein & dollars El Grambling, 1912. This date of its execu- ,for in which business six months after capacity they order note. The three order note of November order of the names, brought value at El Paso, Paso, Paso, at series Sep. Lyon Sep. Sep. 27, therefore, dollars value banking Friar. Friar. Friar. Myrtle Myrtle Myrtle Ave. El prior 3758 O 3826. $34.06, loaned 3758 for at 27, 1911. 3758 3826 dated received, Paso, Paso, received, upon, Texas. Texas. to secure are of Friar El viz., capacity amount, received, part suit on note of defend- both of B $34.06, Miller, record Ave. $2,000 sideration Ave. Royal Royal Upon insti- Paso, with- part- notes are with- Roy- 3826 required, Tex- Tex- for that No- are to out of the same I I tained mon consideration which Norwood v. out of the the series at once are identical their the of their have no recitation Kampmann presented. able takes the same tion, existing Harrington 1055; brand v. W. instruction was has notice based essarily at invoice Friar ry might he had and in view of retrial a be rect 29 v. App. 558, 59 his corroborated favor. Friar’s own Royal Company hand which hand after same had been ders, 150 S. W. 769. 56 S. had failed. A that he dise in his store for 90 tween the turned Royal given, shows that [3] In the cases referred to the notes con The error [2] The Lucas, defense, sequences mind, parcel legal principles applicable serial numbers goods Ferguson he offered to record Company and Royal recitations Civ. displayed charged nature in this length Fuller, of what 548; and that the value response 148 S. W. here sued Bank plea price that an an of the same transaction. Leeves, valued at original parties, an and App. displayed testimony, testimony. indicated suggested inspection interested Company of these add further Turner v. due at the time of subject thereto, McCormick, improperly given, agreement upon disbelieved amounted peremptory indicated. The consideration refused to do. Aside by appellee proven only support as a fact with notice of all defenses transaction to disclose failure of Wiede, 585; time, out of the same transac same to which verdict Ricketts, Tex. Civ. 115 S. W. 53. exchange, upon, days. Appellee testified conceived exchange any rendered 68 W. goods $106.46, respect except Ins. Co. v. requires we of these notes would and he had then have a brief statement Grobe, his contention Gonzales v. but to matter material goods displayed for sale Friar, Thomas v. his find no evidence and had App. 116, and are based and his remaining to be invoice common contained those to the facts 24 Tex. Civ. his own un part in his store While since nec defendant’s and, Villeneuv, which the purchase. the notes 392; Ly merchan evidence reversal, Ry. reason Adoue, stated. unsold as be- Saun as to arose arose They price, 69 S. com part con that will and cor- ju re- rights property. property proceedings notes lien mon & its bank has failed to such innocent holder of collateral paper, acter one have and the amount due the bank as an innocent of the shown. Claflin, pend upon ton v. ery is note as collateral protected, held as collateral. 653, Co. v. the notes alone contained evidence to a valid defense thereon. cashier discloses certainty est—the when the renewal As In [5] And the [4] The innocent holder of place status, of the attempted were the Harrington failed, of Bank, Bank, Rosenthal. renewal note and 29,1911. supra. Wright Harrington, amount of this *3 of whatever how much remained consideration of which is notes as a bona fide to to show that hank parties original 885; Harrington only indicate original notes pleaded. burden innocent restricted v. Hardie and homestead character of notes alone. We hold being past The security, upon note be fixed In Wright discharge loan Justice the extent loan bar of some debt This of with note had been debt holders of certain purchaser must de- In loan, to the amount so his debt is held as collateral proof v. due to which there holder original payee, Van Winkle Brown said: were secured supra, of taken, being W. Hardie, this burden. for which the foreclosure discussing and his recov note Lessing, of Harrington upon of of his rests their homestead Claflin, negotiable orated negotiable degree of rests, made No- but Claflin & collateral status of shown to sufficient the date unpaid has been Whar which inter char- Solo- upon Tex. paid Gin due the the is affirmed. especially by Friar granted, shóuld not be treated as matter testimony Rollins, roneous which assumes as eral which it which has been these justified ed as a application would seem to be ther show the status of the additional collat- cause the court’s Stone, on as collateral. What other establish debtors, should have made the to secure their debt themselves.’’ and the Uen addition thereto Applying From Accordingly, Reversed and remanded. Chief Justice HARPER dissents. This apparent equitably notes show proven only by from rule reached that it should not be further consideration the conclusion and assumed respecting of advancing of Eriar. reversal. the rule there upon necessary holds, H. of such absolute and universal the court is rule order to entitled such case it would seem that view of the the motion for equitably x), recently adopted. proven only by Kempner, all instances of its violation originally this of an interested that an and make the no issue proof The authorities received the notes sued land in as true in to protect sum of of ground enunciated, matters testified to entitled enforce of for which of the lower 1173; Ry. the entire provisions which would show property was reversed be San Antonio v. uncorroborated order to appear. They material, the uncorrob itself. rehearing proof the court’s these notes to reversal; it would enforce regard to fur- of record, matter protect which firmly court held felt er “If the court had submitted the issue and the stated, conclusions had come above their to find a verdict GREEN. would have been GREEN v. defendants, is no for the because there (Court of San Antonio. debt to stand show that the May 20, 1914.) security paid, and as collateral has not been Marriage Marriage— Sep nothing- 54*)—Putative paid, show it has how there is Property. unpaid upon it, much remains nor does aration-Division plaintiff appear necessary and defendant lived to- the evidence that gether wife as husband and and accumulated & Co. collect Claflin these notes order to being property, satisfy under the honest she belief & debt Solomon such, when, fact, they appearing that she Rosenthal. It that the maker of the legally sepa- married, good she entitled payees, never notes devolved defense property assignees to an award of one-half of the ration putative during acquired the existence security, proof them as collateral hold marriage. stated, is, facts that the debt secur- Marriage, ed these has not been how much upon it, security they 106, 109; 93-103, 105, is hold out which and what other Cent. § might paid 54.*) he without to them and which the homestead of Court, Appeal from District Harris Coun- protected. makers cover the purchase price of merchandise sold a common consideration, yet they oth- GREEN v. GREEN and chaser who erwise bear unmistakable evidence spection would indeed be so assume very stupid from an thereof, also an amount of puted ceived the entire stock of to the firm of shows cotton that Claflin & Co. re- Solomon & goods belonged Rosenthal, belonged

Notes

he Kittrell, Judge. ty; Norman G. In connection will state undis- *For cases see same and section NUMBER Am. Series & Indexes. in Dec.