21 Tex. 621 | Tex. | 1858
The plaintiff in error, by the elaborate brief of his counsel, contends in the first place in substance and effect that there was error in the misjoinder of Lemuel W. Gilliam, the assignor, with the makers of the instrument as defendants in the suit. The assignor has not joined in the writ of error and does not complain of the injury arising from this supposed misjoinder, and it would seem that if he acquiesces, if he suffer judgment to be entered against him the maker, who was liable at all events, can have no just cause of complaint. But admitting that the instrument Sued upon was not negotiable by Commercial Law Or usage, yet there was no error in the joinder of the makers and the assignor in the same action. Art. 670 declares that no person shall be sued as endorser, as guarantor, or as security, unless suit shall have been or is simultaneously commenced against the principal, except, Ac., and by Art. 705 the principal and endorser, or surety, Ac., may be joined in the same suit, Ac., Ac., and by Art. 2525 it is enacted that the assignor or endorser of any of the before-mentioned instruments (including both negotiable and unnegotiable instruments) may be sued without the necessity of previously suing the drawer, maker, or obligor, when he may either reside beyond the limits of the Republic or in such part of the same that he cannot be reached by the ordinary process of law, or when he may be notoriously insolvent. The language of these Articles is sufficiently broad (and such is believed to have been the construction) to embrace the assignors or endorsers of negotiable as well as - of unnegotiable instruments. By Art. 2523 the assignee is an
The next two sections (Arts. 2521-2522) after declaring in substance that the assignees of instruments negotiable or unnegotiable may maintain actions in their own name, and that the holders of negotiable instruments past due, and also of those not negotiable, shall allow discounts previous to notice of the assignments, and then it is declared that an assignor shall not be held as security for the payment of the instrument unless the assignee shall use due diligence to collect the same. We think it plain that the Legislature intended to give the same meaning to the term due diligence in this connection that was applied to them in the first Section of the Act, viz : the bringing suit at the first Term ; and if not at the first, then, with cause shown, at the second Term after the accrual of the cause of action.
The Statute changed the acts which would fix the liability of the drawer or endorser of negotiable instruments and substituted suit, styling such suit due diligence.
B is also objected that the Court omitted to give instructions necessary to the law of the case. This is not a ground of error. In Levi v. Wright, (18 Tex. R. 317,) it is said in substance that instructions will not be deemed erroneous because they do not embrace every aspect in which the law might have been presented to the jury. If the charge of the Court was thought to be imperfect in its presentation of the law, it was the right of the party to supply the supposed imperfection by asking the proper instruction.
Whether the execution of the instrument by the plaintiff in error was proven, or not, depended on the fact of White’s having authority to sign, his name.
This was a question of fact for the jury upon which they were properly instructed by the Court. Their verdict is supported, or at least it is not without or contrary to the evidence.
The fact that the draft was presented and rejected by the Post Office Department was sufficiently established by proof. It cannot be supposed that such draft should be presented by a Notary and protested for non-acceptance, with notice given. The letter giving notice of the dishonor of the draft purported to be from the Auditor of the Treasury for the Post Office Department, signed Wm. F. Phillips, Auditor • and
No injury could have arisen from the sickness of the leading counsel. The gentleman who acted as his assistant was fully competent to manage and sustain the defence had it been a meritorious one.
We are of opinion that there was no error and that the judgment be affirmed.
Judgment affirmed.