*2 C.J., PRESLAR, F. Before STEPHEN Mr. testified and there Rowhanian was re- SCHULTE, JJ. OSBORN ceived into evidence the various “Sales Ad- Cook, from Inc. which vice” Thomas reflect the serial numbers denominations of OSBORN, Justice. May, 1979, in the cheeks which were issued and are to now claimed have been lost. This case involves traveler’s checks checks, Like all traveler’s these checks had purchased which in Iran in and lost sign place a for the owner to when the New reverse and York. We remand. place checks were issued and another for a About time of the Shah’s the abdication signature negotiat- when the checks were in Azizollah Rowhanian left Iran ed. Mr. Rowhanian testified that the daughter came with his to the United purchased from the he street trip, purchased States. Prior to his he he subsequently brokers and which lost $9,500.00 checks in in traveler’s his name.- signatures them. The parties had no $20,100.00 He also in purchased traveler’s stipulated the value of the lost checks was checks from street brokers. Since it was $20,100.00. jury found Mr. Rowhanian illegal country to with leave the more than the acquired ownership traveler’s $3,000.00 currency, he hid all of these question, that such checks were tape checks in a traveler’s recorder when stolen or and that the “advices” accu- lost he flew Iran. out of rately the terms of the reflect checks. York, When he arrived New he en- airport Three, tered an at the elevator in order to No. Point of Error the planes. make a change entering After Appellant sufficiency the attacks the having elevator he believed he was a jury’s the the evidence to verdict elevator, stepped heart attack and off the trial court erred in and contends the over left tape but his recorder in the elevator. ruling its motion for an instructed verdict. returned, tape When the elevator the re- We that there is no evidence to conclude gone. corder was Mr. a Rowhanian filed Special Issue support the answer to Inc., Cook, party claim with Thomas C. the The sales do not reflect actual advices checks, issuing the for reimbursement of not show terms of checks and do that all of his lost traveler’s checks. He was pay prop promise fact there was a to when paid for he purchased those checks which erly countersigned by the holder. Mr. Ro- The claim was suit name. denied and testify did that the lost checks whanian not $20,100.00 was filed for the worth of a the face amount contained purchased checks he had street countersigned. of the checks when brokers. problem is that this case The real alleged peti- his amended wrong tried on the that entitled to recover for lost tion he was tried pled, and submitted provisions of Section instruments under 3.804, Tex.Bus. & jury upon based Section 3.804 of Texas Business and Commerce of the code is provision That Com.Code. provision of the code states: Code. That applies to the applicable. Section 3.804 of an instrument which owner 3.102, Section “instrument.” owner destruction, lost, theft or oth- whether Com.Code, says an “Instru & Tex.Bus. erwise, may maintain an action in his negotiable instrument. ment” means any party own recover from name and Com.Code, com & Tex.Bus. Section proof due of his own- liable thereon 4, says: ership, prevent pro- ment facts which form, Traveler’s checks in the usual which were issued checks Thomas C. instance, negotiable are Cook, instruments un- That request Inc. comes too late Article they have been when made after case has completed by identifying signature. Cf., and decided on appeal. Thomas v. Morrison, 537 (Tex.Civ.App.— Mr. Rowhanian testified these checks had *3 1976, n.r.e.). El Paso ref’d writ completed been fact no signature of the them. owner on There- rehearing motion for is The overruled. qualify fore these cheeks did not as “in- struments” under Section 3.804
case should not have on that point We sustain the no evidence
of but since the case was tried on
wrong theory, justice in the interest of we
reverse remand for a new trial. Na tional and Accident Insurance Com Life (Tex.1969);
pany Blagg, v. Liebman, (Tex.
Scott
REHEARING Appellee contends motion for of Court of rehearing that there was no issue as to the Austin. terms the traveler's in sustaining lost and that we erred 6, 1985. attacking sufficien- point of error Rehearing Denied Dec. cy of the evidence on that issue the case.
Having tried the case under Section Com.Code, Appellee re-
Tex.Bus. & was in-
quired the terms of each to establish lost. If there was
strument claimed dispute, why did trial court submit
no dispute, why there
that issue? If to the submission object
didn’t the Appellant’s Motion issue? “He
Instructed Verdict stated: [Plaintiff]
must the terms of the instrument establish * * argument sup- Counsel “He hasn’t even
port of the motion said: the instruments the terms of
established his suit.” bringing he is that the sales find all of the terms of
advices reflect regard particularly with dispute, counter
to a urges now
signed by holder. judicial terms
that we take notice