291 S.W. 583 | Tex. App. | 1927
The original answer of Orgain was under oath. He denied that he executed the contract sued on, and further pleaded that his signature, on which it is sought to bind him, was made by him on a sheet of paper separate and apart from the contract to which it now purports to be attached, and when signed by him was attached to certain papers entirely distinct from the agreement sued on. Plaintiff filed a supplemental petition, and the defendant filed a supplemental answer. In that pleading he alleged that he did read and consider the contents and language of the papers attached to the sheet on which his signature now appears at the time he signed the same, and that the matter which he signed is not the matter to which the sheet of paper bearing his signature is now attached; that the action which subsequently has been followed by defendant with reference to the reorganization of said bank was pursuant to the agreement which he did sign, and not in conformity with the alleged agreement on which he is now sued.
The court submitted but one issue, later quoted, which was answered, "No."
Judgment was rendered for defendant.
The deficit clause is in the fifth paragraph of the contract appearing on the second page and reads:
"Fifth: It is agreed that if the sum realized from said $400,000 of assets shall be sufficient to pay off and discharge the $225,000 of obligations entered into by the organizers, then there shall be no obligation against the subscribers hereto who have contracted to purchase an amount of stock in the new bank equal to 50 per cent. of their stock in the old bank to pay anything further therefor, but the organizers will transfer their stock to them free of further charge; but any subscriber who has contracted to purchase an amount of stock in the new bank greater than 50 per cent. of his stock in the old bank shall remain obligated to pay the balance due thereon, as above indicated; and should said $400,000of assets not realize the sum of $225,000, then each subscriber heretoshall be obligated to pay such unpaid balance and amount of the stockcontracted to be purchased by him." (Italics ours.)
The italicized portion is the deficit clause upon which the suit is based.
The signatures of a number of persons appear upon the second page. The third and fourth pages consist of signatures, Orgain's appearing upon the fourth. He was not one of those designated in the contract as an organizer of the new bank.
Orgain testified that when the contract was presented to him for his signature and was signed by him, it did not contain the deficit clause. The effect of his evidence is that, after he affixed his signature on the fourth page, there was an unauthorized alteration of the contract by the substitution, for the second page, of a page which contained the deficit clause.
The questions presented will be considered in their logical order, rather than in the order appearing in appellant's brief.
The testimony of the witness Price was admissible for the purpose of impeaching the plaintiff's witness Harvey. Johnson v. Brown,
Appellant insists it should have been limited to that purpose. If they desired it to be so limited, it was their duty to so request at the time of its admission, or later, by motion or charge. This they did not do. They cannot complain that the trial court was not more vigilant in their behalf than they were for themselves. Shumard v. Johnson,
The alteration pleaded by the defendant is not apparent upon the face of the contract sued upon. The burden of proving the alleged alteration thus rested upon the defendant. Kalteyer v. Mitchell,
A sworn plea, which in effect, admits the signature but sets up a material unauthorized alteration after signing, is not strictly a plea of non est factum. Dewees v. Bluntzer,
But one issue was submitted, as follows:
"Question No. 1: Do you find from a preponderance of the evidence that the paper upon which the defendant, Orgain, signed his name was attached to or a part of the contract to which it is now attached, at the time he signed his name? Answer yes or no."
In connection with the issue, the court simply charged that the term "preponderance of the evidence" meant the greater weight of credible evidence.
Appellants complain that the court's charge improperly placed upon them the burden of proof.
Upon a contested issue of fact it is not always necessary to charge upon the burden of proof. The issue is to be decided *586
according to the preponderance of the evidence. Stookesbury v. Swan,
The charge simply calls for an answer yes or no, to the issue submitted according to the preponderance of the evidence, which, in the state of the evidence and under the authorities last cited, was a correct submission. We do not regard it as imposing the burden of proof upon either party.
In Kerr v. Blair,
"A charge does not place the burden of proof upon either party, where it simply instructs the jury to determine issues from the preponderance of the evidence."
In Burkett Barnes v. Miller (Tex.Civ.App.)
"A charge on a contested issue of fact is properly determined either way according to the preponderance of the testimony, and this is all the court told the jury."
See, also, Railway Co. v. Dotson, supra; Bargman v. Brown (Tex.Civ.App.)
It is also objected to the issue submitted that the jury should have been asked whether the contract that Orgain signed contained the deficit clause rather than the question as submitted. It may be that such would have been a better way of submitting the controlling issue in the case, but the effect and meaning of the question as submitted and the jury's answer thereto is plain and cannot be mistaken. The fact that an issue or charge might have been more aptly drawn, of itself, is not reversible. We think the issue submitted fairly and sufficiently submitted the controlling question in the case. If appellants were not satisfied therewith, they should have requested, in writing, an issue in the form desired by them.
The only remaining, question relates to alleged misconduct on the part of the jury, based upon the testimony of the foreman of the jury. No other juror testified. The material portion of his testimony is as follows:
"I was foreman of the jury in the case of S.W. Moore, Trustee, v. J. C. Orgain, tried a few weeks ago in this court. That case was given to us by the court for consideration at approximately 11:30 o'clock. We left for lunch at about 1 o'clock, so it would be about an hour and a half that we deliberated before going to lunch. As I recall it, when we left for lunch the ballot stood 6 to 6 with reference to answering the question submitted by the court; 6 wanted to answer, `Yes,' that the page which Mr. Orgain signed was attached to the contract in question. When we got back from lunch we probably did take another ballot; there was a good deal of discussion and talk, argument pro and con on both sides, and we got into the question of organizers and subscribers. It was finally pointed out that Mr. Orgain was not an organizer, but apparently was a subscriber, and because of the fact that he was a subscriber, he should not be made to pay any of the indebtedness of the organizers. It came up over the fact that Mr. Orgain was not an organizer, that he was simply a subscriber, and, of course, there was talk — a good deal of talk in the jury room about sticking Mr. Orgain, and a good many thought that he should not be stuck, and their reason was that he was a subscriber and not an organizer, and he should not be made to pay any of the organizers' indebtedness. It amounted to agreeing, before the final ballot, that that question would be answered so he would not be stuck. That is what took place. I believed at the time that that instrument was attached to the contract when Mr. Orgain signed it, and I still believe it. I don't remember whether I answered that question `No' in pursuance with that agreement. Yes, sir; I voted, `No,' in pursuance with my agreement and the agreement of the other jurors that they would answer that question so Mr. Orgain would not be stuck. It amounted to the other jurors on the panel doing likewise. * * *"
"I certainly can say that there were other jurors that were influenced by that argument. I was, and I would say there were four others — five others. I stated to you what the argument was; I have not failed to state it. I did say I couldn't tell whether the argument that took place was that Clint Orgain, not being an organizer but being merely a subscriber, it would be an asinine thing for him to do to lay himself liable, and it was evidence of probative force that he didn't sign that kind of a contract. I do not say that I was influenced by an argument which I am unable to state, I stated the argument."
The sum and substance of this testimony is that the foreman and several other members of the jury deliberately agreed to a verdict which they believed to be contrary to the true facts. In other words, they agreed to a false verdict. This testimony simply impeaches the verity of the verdict which all of the jury agreed to return. This is not statutory misconduct, but impeachment. Twichell v. Klinke (Tex.Civ.App.)
And from an early date it has been the established rule in this state that a juror cannot impeach his verdict by affidavit or otherwise. Little v. Birdwell,
We do not think recent opinions rendered by the Commission of Appeals and cited by *587 appellants are to be regarded as holding that a verdict may be impeached by jurors.
Being of the opinion that the testimony did not show misconduct, as distinguished from impeachment, we hold that the trial court did not err in overruling this ground of the motion for new trial.
Furthermore, the alleged misconduct was testified to by the foreman alone. No other juror testified. The bill of exception in which the testimony was incorporated closes as follows:
"Whereupon, the court being of the opinion that the grounds on which plaintiffs sought to impeach the verdict of the jury was not substantiated, the motion was overruled."
We regard this as showing that the trial court found against the issue presented. This is a finding of fact, and this court is bound by it. Railway v. Gray,
The court was warranted in refusing to credit the uncorroborated testimony of a juror, who confessedly violated his oath as a juror by returning a verdict which he believed to be false.
This disposes of all questions presented. No reversible error appearing, the judgment is affirmed.