173 S.W. 606 | Tex. App. | 1915
On the case made by the pleadings and the evidence, we think the court should have instructed the jury to find for appellant It follows we are of opinion the seventh assignment, in which complaint is made of the refusal of the court to so instruct the jury, should have been sustained.
Appellee's contention that he acted for the peanut factory in drawing the draft on it, if sustained by the record, would not furnish a reason why he should not be held liable to appellant. The law applicable to such a contention has been stated to be as follows:
"It is a well-settled rule that only such persons are liable on a negotiable instrument as are named or described therein, or, in other words, a negotiable instrument is binding on the person only by whom it is signed. If an agent is authorized to make, draw, accept, or indorse a negotiable bill or note, in order that it may be binding on the principal, he must either sign the principal's name, or must make it appear in some way from the face of the instrument that it was executed by him; and, if instead of doing so, he, innocently or intentionally, makes it appear that he himself is the party to the instrument, it will be binding on him alone. When, therefore, the agent makes, indorses, or accepts a negotiable instrument in his own name, he is personally liable thereon, although he may have acted in good faith and may have disclosed the fact of his agency or the name of his principal; and parol evidence is inadmissible for the purpose of charging another or relieving the agent from liability on such instrument. And this is true notwithstanding a request to charge the bill or note to a particular account, and although the payee knows the maker, acceptor, or indorser to be an agent." 2 Clark Skyles on the Law of Agency.
No reason appears from anything in the record before us why the general rule stated above should not be held to be applicable to the contention made by appellee, and conclusive as against a right in him to have the contention sustained.
Because the draft first drawn was paid by the peanut factory, appellee assumes that it would have been paid had it been drawn for a sum of $134.93 in excess of the sum it was drawn for. It was not shown that the first draft would have been paid had it been drawn for the full amount due for the peanuts; but if it should be conceded that it would have been, and if it should also be conceded that it was due to carelessness on the part of appellant's cashier that it was not so drawn, it would not follow that appellee would have been relieved of liability on the draft sued upon. He was as fully advised of those facts, if they were facts, at the time he drew the draft sued upon, as he was at the time this suit was commenced or afterwards.
Nor do we think the fact, if it was a fact, that appellant, at the time it commenced *608 the suit against him, assured him that it did not claim a liability against him, but was making him a party merely for the purpose of giving jurisdiction to the courts of Franklin county over the person of the peanut factory, was a reason why he should have been relieved of the obligation he incurred to pay the draft sued upon if the peanut factory failed to pay it It was not pretended that there was any consideration to appellant for its alleged agreement to release him from his liability to it.
The judgment will be reversed, and judgment will be here rendered that appellant have and recover of appellee the amount of the draft sued upon, interest thereon, and the costs of this court and of the justice and county courts.
