author: HENDRICKS, J.

text:
    FIRST NAT. BANK OF WELLINGTON v. HIX et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1914.
    Rehearing Denied March 21, 1914.)
    1. New Trial (§ 49) — Misconduct ox J'urob —Entertainment by Party.
    Where the foreman of the jury, after the case had been submitted to them and during their deliberations thereon, was entertained by and spent the night with one of the defendants, obtaining meals and bed free of charge, plaintiff’s motion for new trial should have been granted, notwithstanding Acts 29th Leg. c. 18, providing that the court may, in its discretion, grant a new trial for misconduct of the jury.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 97-99; Dec. Dig. § 49.]
    2. Bills and Notes (§ 139) — Renewal Note —CONSIDERATION.
    H., who owed a bank $600, desiring to have money advanced for the season of 1908, procured sureties to sign his note to the bank for the sum of $1,000. The sureties contended that their note was purely an indemnity to protect the bank to that amount for possible losses by H. in his business for the year 1908. Held, that if it was understood between the bank and H. that the $1,000 note should absorb the previous indebtedness of H. to the bank, but the sureties were not aware of that fact, and there was no loss by H. in the year 1908, there was no consideration for a renewal note executed by them to the bank covering such past indebtedness, but executed in the belief that there had been a loss.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 340-354; Dec. Dig. § 139.] ’
    3. Principal and Surety (§ 39) — Liability op Surety — Misrepresentations.
    If the agreement between H. and the bank was that the $1,000 note was for the purpose of absorbing a prior note of H. to the bank and for using the margin as an advancement to H. for his business in the year 1908, the bank could recover notwithstanding representations of H. to the sureties that the $1,000 note was indemnity only for loss during the season of 1908.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 82-85; Dec. Dig. § 39.]
    4. Bills and Notes (§ 139) — Renewal N otes — Consideration.
    If a note for $1,000 executed by H. as principal with defendants as sureties was one to indemnify the payee for possible losses sustained by H. during the season of 1908, and there was no loss, the note was discharged, and no consideration existed for a renewal note executed by the same parties for an indebtedness owing by H. to the payee for loss for pri- or seasons under the belief that there had been a loss during the year 1908.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 340-354; Dee. Dig. § 139.]
    Error from Collingsworth County Court; R. H. Cocke, Jr., Judge.
    Action by the First National Bank of Wellington against E. M. 1-Iix, as principal on a note, and O. B. Couch and others, as sureties. There was a judgment against the principal defendant and in favor of the sureties, and plaintiff brings error.
    Affirmed as to defendant Hix, and reversed as to defendants Couch and another.
    See, also, 156 S. W. 535.
    J. L. Lackey, of Wellington, J. M. Presler, of Memphis, and C. C. Small, of Wellington, for plaintiff in error. R. H. Templeton, of Wellington, and Crudgington & Works, of Amarillo, for defendants in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

At the beginning of the cotton season of 1907, the First National Bank of Wellington, Collingsworth county, Tex., furnished the money to E. M. Hix, to purchase cotton for the cotton season of that year. At the expiration of the cotton season, Hix closed his overdrafts at the bank by the execution to the latter of a note for the sum of $604.10, representing his loss. At the beginning of the cotton season of 1908, Hix, desiring to continue the same business, procured three sureties, Couch, Roberts, and Wilkins, to sign his note for the sum of $1,000, payable to the same bank; Hix and the sureties contending in this case that the purpose of the $1,000 note was that of indemnity to protect the bank to that amount for the cotton business for that year in the event of loss by Hix, and the bank asserting that, in accordance with its understanding with Hix, the $1,000 note was for the purpose of discharging the $604.10 note, and the balance, $395.90, was to be used as a margin against his cotton purchases for 1908. At the end of the cotton season of 1908, Hix, as a result of his operations in cotton, had to his credit the sum of $312, which the bank applied upon the $1,000 note, leaving a balance of $688, which latter sum was merged into a new note, executed by Hix, and the same sureties as upon the $1,000 note. This last note was successively renewed several times by Couch and Roberts, as sureties to Hix. Wilkins, on account of his removal from Wellington, refused to execute the first renewal, and this suit is by the bank against I-Iix, Couch, and Roberts, upon the last renewal.

The sureties, Couch and Roberts, also contend that the first execution of the $688 note was induced ,by the representations of the bank to the effect that Hix had suffered a loss for the cotton season of 1908, and the successive renewals of said note by them was with the same understanding, carrying out the alleged original purpose of the $1,000 note executed as indemnity for the business of that year; that the cotton business of 1908 realized a profit instead of a loss; and that said note was fraudulently obtained and was without consideration. The bank, plaintiff in error, assigned the following, submitted as a proposition: “The court erred in refusing to set aside the verdict of the jury and the judgment thereon and grant to-plaintiff a new trial, because of the fact that one of the jurors who tried the case, to wit, one Westfall, the foreman of the jury, after having heard all the evidence and arguments of counsel and having been given the charge of the court, and after having retired to the jury room and having considered and deliberated on said case, and while the same was still in the hands of the jury, went home with one of the defendants, O. IL. Couch, and spent the night with him, and (obtained) supper, bed, and breakfast, free of charge,” etc. The objections in the brief of defendant in error — the same criticisms having been leveled to the nine assignments of plaintiff in error — are untenable as preventing our consideration of tbe particular specification of error. Tbe assignment is succinct and appropriate, wbetber considered for tbe twofold purpose of an assignment and a proposition, and tbe subjoined statement is apt and sufficiently comprehensive, and neither could be considered as argumentative.

Tbe evidence upon tbe bearing of tbe motion for a new trial, without contradiction, sustains tbe assignment, and tbe trial court should have vacated tbe verdict and set aside tbe judgment.

We believe tbe Supreme Court of Georgia, in Walker v. Walker, 11 Ga. 205, expressed tbe true rule in matters of this kind, and tbe evidence of tbe actions of tbe juror and tbe conduct of tbe litigant in that case were very similar to tbe facts here: During a will contest one of tbe jurors was entertained by tbe contestant at tbe latter’s home and expense. Tbe court said: “It is true, tbe affidavit of the juror was produced, in which be states that his verdict was not influenced by tbe kindness and hospitality of the caveator (contestant); but we place our judgment on the principle of the common law, which we consider a safe and salutary rule. When a juror has been impaneled to try a cause, and during tbe trial, and before be has rendered bis verdict, be shall be entertained, by either of tbe parties, at their expense, and tbe verdict be in favor of tbe party so entertaining tbe juror, tbe verdict will be set aside. Graham on New Trials, 96, 97, 98, 99, and cases there cited. This rule is indispensably necessary to preserve tbe purity and integrity of jury trials in our courts, and cannot be too strictly enforced.” (Tbe textbook cited is not accessible to us.)

Tbe case of Ensign v. Harney, 15 Neb. 330, 18 N. W. 73, 48 Am. Rep. 344, discloses that, after adjournment of a trial from Saturday to Monday, two of tbe jurors requested and obtained from one of tbe attorneys of tbe parties, as a favor, tbe latter’s horse and buggy to carry them home and return tbe following Monday. This proceeding was defended on tbe ground “that tbe transaction was open and above board,' and not done with tbe intention of exercising an influence on tbe jurors, and that in fact it did not have any influence upon them in making up their verdict.” Tbe Supreme Court of Nebraska said: “Unless fair-minded, unbiased jurors can be selected, a trial becomes a mere farce, dependent, not upon tbe merits of the ease, but upon extraneous circumstances, such as tbe bias, prejudice, or interest of tbe jury. • * * Where a juror is accepted as being impartial, he must remain so during tbe trial. To permit him to accept favors from either party is to place him under obligations to such party, tbe tendency of which is to bias his judgment. Nor is it material that such favors were not intended to influence tbe juror, as it cannot be determined bow far they may have bad that effect, and such conduct will vitiate the verdict.”

Chief Justice Fisher said, in tbe case of Marshall v. Watson, 16 Tex. Civ. App. 127, 40 S. W. 352, where it was shown that some of tbe jurors during tbe trial dined at a restaurant upon tbe invitation, and at tbe expense, of one of tbe parties: “If a practice of this character was permitted to go unchallenged, it would be difficult to draw the line, and say when it should cease, and tbe best policy to pursue is to prevent it altogether. It is impossible, in cases where questions of this kind arise, to determine wbetber barm or injury or improper influence resulted, and an effort to ascertain tbe truth in that respect would be altogether speculative.” Numerous authorities are cited by Justice Fisher, sustaining the rule announced in that cause and adopted here, including tbe authorities more extensively quoted from and cited by us, and additional to which we cite tbe following cases: Johnson v. Hobart (C. C.) 45 Fed. 542; Perry v. Bailey, 12 Kan. pp. 419, 420; Railway Co. v. Welch, 12 Ind. App. 433, 40 N. E. 650.

Tbe trial court was very probably influenced by that portion of tbe statute of 1905 on tbe subject of new trials, reading as follows: “Where tbe ground of tbe motion is on account of misconduct of tbe jury or tbe officer in charge, or because of any communication made to tbe jury, or because tbe jury received other testimony, tbe court shall bear evidence thereof, and it shall be competent to prove such facts by tbe jurors or others, by examination in open court; and if the misconduct proven, or tbe testimony received, or tbe communication made be material a new trial may in tbe discretion of tbe court be granted.”

Chief Justice Brown, commenting upon this act, said, in tbe case of Houston & Texas Central Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606: “ * * * We conclude that tbe ‘discretion’ expressed in tbe act * * * is upon the same level with tbe discretion vested in tbe trial judge in many instances, and that we may review its exercise wherein it clearly appears that tbe rights of parties have been disregarded.”

The language of tbe Supreme Court, in tbe same case following the quoted expression and construed in connection with it, may, upon a cursory consideration, indicate that tbe court intended to bold that it is in cases where tbe evidence of tbe conduct of tbe jury would leave it reasonably doubtful as to tbe effect upon tbe verdict, that a higher court should review tbe action of a trial court; and hence because tbe juror in this matter testified be bad already made up bis mind upon tbe issues in tbe cause when be accepted tbe hospitality of tbe litigant, and that because tbe case was not mentioned while as a guest in tbe home and he was uninfluenced by tbe entertainment, and tbe trial court being more capable of forming a safe conclusion than the appellate court can from the record, his action is not reviewable. The cases cited by appellee in construing the statute and reviewing the previous actions of trial courts in matters of this kind are not parallel to the record here. This is a ease of the conduct of the juror and a party to the cause, and, as applied to the case made, courts should not speculate upon the innocence and intentions of the actors. If you did speculate, it would be safe to assume that this juror, if he had made up his mind against the cause of his friend, delicacy would have prevented him from accepting the hospitality and then rendering a verdict in conformity with his conclusions; having made up his mind in favor of his friend, if the other jurors should have presented strong arguments against the cause of the party extending the hospitality, most men would feel some embarrassment in breaking bread with another and then voting against his cause, the litigant presumably believing, and most litigants do, that his cause was meritorious and just. It may be said that this is not the record here, but the answer is that it is the tendency generally upon which the rule is based. These parties may be as innocent as the spoken words assert, and, of course, we do not impute guilt in any sense, but the law condemns the act, however innocent it may be in fact.

If the statute mentioned comprehends the character of case arising here, where a juror and a party to the suit act together, the dis-‘ cretion in the statute is that sound discretion which the common law imposed upon a trial court; as much so as if a successful party to a cause would during the pendency of the trial entertain the whole jury for a week and obtain a verdict and not a word spoken, and each juror swearing that the hospitality of his friend did not enter into the verdict.

In considering the record in this case, we will say that if the $1,000 note was indemnity to the bank for cotton loss for the year 1908, and such was the understanding between Glenn and Hix, and it was understood between them that said note should absorb the previous indebtedness between Hix and the bank, and the sureties, when they signed the $688 note, were not informed, and had no knowledge, that the previous indebtedness of Hix to the bank was attempted to be merged in the note, and were not aware of that fact at the time of the different renewals, and there was no loss for 1908, the note sued upon is without consideration and the jury should be so charged.

If the agreement between 1-Iix and the bank was that the $1,000 note was to be used by the bank for the purpose of absorbing the previous note of Hix to the bank and the balance was to be used by 1-Iix as a margin for the purpose of conducting his cotton business for the year 1908, the bank could recover, though the representations of Hix to the sureties, inducing them to sign the $1,000 note, were that said note was to be used as an indemnity for loss arising from his cotton operations for 1908.

If the $1,000 note was indemnity for loss for 1908 and there was no loss, the note was discharged and the consideration would not exist for the renewal, and it would not be presumed that the sureties signed the renewal note upon a different consideration than existed for the $1,000 note attempted to be merged into the renewal and made the basis of same. When the $1,000 note matured on its face and a renewal was demanded by the bank, unless the sureties were informed, or knew differently, they would have the right to presume that the demand for the execution of said note for $688 represented a loss for that year. As applied to the record presented upon this appeal, the principal issue as to the real agreement between Hix and the bank was not presented to the jury, except by implication. If the court will conform the charge to the facts, there is no real necessity for definitions. We do not mean to intimate that the testimony of two of the sureties, Wilkins and Roberts, as to the statements made by Glenn at the time the first renewal note was executed, were not admissible; but, as applied to this record upon this appeal, the charge of the court conforming to the issues presented by each and applied to the facts we think is all that is necessary.

For the error indicated, this cause will be reversed and remanded as to Couch and Roberts, but affirmed as to Hix; there being no disputable issue as to his liability.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    BOMAR v. WYNN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 14, 1914.)
    1. Principal and Surety (§ 59<!)—Guaran-ty (§ 27)—Liability op Sureties and Guarantors.
    Sureties and guarantors can be held only upon the very terms of their contracts.
    [Ed. Note.—For other cases, see Principal and Surety, Cent. Dig. §§ 103, 103%; Dec. Dig. § 59 ; Guaranty, Cent. Dig. § 28; Dec. Dig. § 27.]
    2. Guaranty (§ 36)—Construction— Guaranty op Bills and Notes—“Discount.”
    A guaranty to the board of directors of a corporation on notes executed by the corporation to them, and upon notes and other evidences of indebtedness which the directors at any time might discount or cash for the corporation, does not cover a note of the corporation to the wife of one of the directors, which the director who was liable as a surety paid at maturity because of the insolvency of the corporation, for the note was not executed to any of the directors, and was not cashed or discounted; the word “discount” denoting the act of giving money for a bill of exchange, deducting the interest (quoting Words and Phrases, vol. 3. pp. 2089-2090).
    [Ed. Note.—For other cases, see Guaranty, Cent. Dig. §§ 38-45; Dec. Dig. § 36.]

      Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by E. P. Bomar against Ike A. Wynn. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    D. T. Bomar, of Ft. Worth, for appellant. Slay, Simon & Wynn, of Ft. Worth, for ap-pellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

Ike A. Wynn, a stockholder in the Medlin Milling Company, a private corporation, executed and delivered to E. P. Bomar, J. H. Blocker, F. M. Rogers, S. W. Gladney, and W. H. Flory, the directors of said company, the following obligation in writing: “Fort Worth, Texas, July 1st 1909. To the Directors of The Medlin Milling Company, Fort Worth, Texas. In consideration of $1.00 and other valuable considerations, we hereby guarantee to you, your successors, assigns, or to any bank, banker, trust company or individual, any and all sums that may now or at any time hereafter be owing to you by the Medlin Milling Company of Fort Worth, Texas, on the note or notes of company executed by it to you, or upon notes, bills receivable, drafts, acceptances, checks, or other evidencés of indebtedness which you may at any time hereinafter discount or cash for said company, and we hereby authorize you at any time, in such manner and upon such terms and for such time as you may see fit, to extend the time and manner for the payment of said sum or sums of money, or any part thereof, without any notice to us, and we hereby agree beforehand that no such extension or credit shall in any manner affect our liability on this guaranty. It is hereby expressly understood and agreed that the liability of the undersigned, under this guaranty, shall in no event exceed the principal sum of $10,000. It is further understood and agreed that this shall be a continuing guaranty and shall remain in full force and effect until written notice shall have actually been received by you that it has been revoked by the undersigned or either of them. It is further expressly agreed and understood that you need not give any notice of any kind to the undersigned, or to either of them, of the acceptance of this guaranty, and it is further understood and agreed that no omission of any kind on your part in the premises shall in any way whatsoever affect or impair this guaranty. [Signed] Ike A. Wynn.”

E. P. Bomar instituted this suit to recover of Wynn the 'amount stipulated in that obligation upon the following facts alleged in plaintiff’s petition: Mrs. Alice L. Bomar acting on the faith of said contract and other similar contracts of guaranty, made by other stockholders in the milling company, loaned to the milling company the sum of $42,000, for which the milling company executed and delivered to her its promissory note, payable 90 days after date, and bearing interest from date at the rate of 10 per cent, per annum. Before delivery the note-was indorsed by the directors above mentioned. A renewal note was thereafter executed with the same signature and the same indorsements thereon, for the sum of $43,050, which amount included the interest then accrued upon the original note. Later the milling company became insolvent, and upon a settlement of its affairs only 55 per cent, of its indebtedness was paid after exhausting, all of its assets, said payments being prorated upon all of the outstanding claims, thus leaving unpaid 45 per cent, of the indebtedness of the milling company to Mrs. Bomar. This balance was paid to her by plaintiff, E. P. Bo-mar, who, in his petition, claimed to be sub-rogated to all the original rights of Mrs. Alice L. Bomar against defendant, Wynn. It was further alleged that the obligation set out above was executed and delivered by Wynn with the intent and purpose on Ms part of lending his credit to the milling company and inducing its directors “and successors and assigns, and any bank,, banker, trust company, or individual, to whom the milling company might apply, to extend to the milling company credit, or otherwise aid the milling company financially by discounting its note or notes, bills receivable, drafts, acceptance, checks, or other evidences of indebtedness that they, or any of them, might thereafter discount for the milling company for a valuable consideration.” The trial court sustained a general demurrer to the petition, and, plaintiff having declined to amend, his suit was dismissed. From the order of dismissal he has prosecuted this appeal.

The, same contract as that executed by Wynn was construed by the Court of Civil Appeals of the Sixth District in the case of Bomar v. Gahagen, 152 S. W. 689, and we approve the construction there adopted. As there announced, “It has long been the settled law that sureties and guarantors can be held only upon the very terms of their contracts.” By the terms of the contract the directors are guaranteed for all sums that may be thereafter owing to them by the milling company upon notes executed by the milling company to them, or upon any evidences of indebtedness which the directors might discount or cash for the company. The note under wMch plaintiff claims was not executed by the milling company to any of the directors, but to Mrs. Alice L. Bomar. Neither was that note discounted nor cashed for the company by any of the directors. The transaction between the milling company and Mrs. Bomar was that of a simple loan of $42,000 advanced by her to the company and for which the company executed its note.

In volume 3, Words and Phrases, pp. 2089, 2090, the following are some of the definitions given of the word “discount”:

“The word ‘discount’ denotes the act of •giving money for a bill of exchange or promissory note, deducting the interest.”
“An authority to a bank to discount evidences of a debt includes authority to buy; for ‘discounting’ at most is but another term for ‘buying at a discount.’
“The discounting of notes is the advancing •of money on them, the interest being, deducted and received by the person discounting and retained and reserved at the time of, ■or as a part of, the advance.”

To the same effect see Anderson v. Cleburne Bldg. & Loan Ass’n, 16 S. W. 298. It is too clear for argument that the directors never cashed Mrs. Bomar’s note. She and no one else advanced the cash to the company.

While the guaranty in the obligation sued ■on is extended to “any bank, banker, trust company, or individual,” yet that guaranty is limited to obligations executed by the company to the directors and thereafter acquired by such bank, banker, trust company, or individual. As the note evidencing the indebtedness for which plaintiff seeks a judgment was not executed by tne milling company to the directors, or any one of them, but was executed by the milling company to Mrs. Alice L. Bomar, the guaranty never applied in her favor. Eor a more extended discussion of the questions here involved we refer to the opinion and authorities cited in Bomar v. Gahagen, supra.

The judgment is affirmed.


text:
    FERGUSON v. FAIN et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 7, 1914.
    Rehearing Denied March 7, 1914.)
    1. Justices of the Peace (§ 135) — Execution-Injunction— EVIDENCE.
    In a suit to enjoin the enforcement of a justice’s judgment on the ground that it was satisfied by the satisfaction of certain other judgments, which did not refer to the justice’s judgment, it was not error to admit the pleadings in those suits to determine whether the issues therein involved the justice’s judgment in question.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 426-44Y, Y49; Dee. Dig. § 135.]
    2. Appeal and Error (§ 1050) — Rulings on Evidence — Prejudice.
    On an issue whether a certain justice’s judgment had been satisfied, it was not prejudicial error to admit an execution issued on the judgment and returned unsatisfied; there being no contention that the judgment was paid at that time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153^115Y, 4166; Dec. Dig. § 1050.]
    3. Appeal and Error (§ Y42) — Assignments op Error — Form.
    Where assignments of error were not followed by statements, showing the numbers of the bills of exception or the pages where they could be found in the record, the only reference to the record being to the pages showing the assignments of error and appellant’s motion for a new trial, the assignments were not presented as required by Court of Appeals rule 31 (142 S. W. xiii), and 'could not be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § Y42.]
    4. Appeal and Error (§ 1050) — Rulings on Evidence — Prejudice.
    Where, in a suit to restrain the collection of a justice’s judgment, plaintiff claimed that it had been satisfied by the satisfaction of other judgments recovered by defendant against him, and the attorney in such former suits for the judgment creditor testified that a settlement of the justice court judgment was not included in the prior agreement, plaintiff was not prejudiced by the admission of the witness’ further opinion that the reason why the justice court judgment was not mentioned in the other judgments was that such judgments were not intended to cancel it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ '1068, 1069, 4153-415Y, 4166; Dec. Dig. § 1050.]
    5. Trial (§ 131) — Misconduct op Counsel-Argument — Objections.
    An objection to remarks of counsel as a whole cannot be sustained, where some of the remarks objected to were proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 312^314; Dec. Dig. § 131.]
    Appeal from District Court, Denton County ; C. F. Spencer, Judge.
    Suit by H. C. Ferguson against Mattie Fain and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    See, also, 142 S. W. 1184.
    H. C. Ferguson, of Lubbock, for appellant. Geo. M. Hopkins, of Denton, for appellees.

      For other cases see same topic and section NUMBB3R. in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

H. C. Ferguson instituted this suit against Mrs. Mattie Fain to restrain the levy of an execution issued upon a justice court judgment in Mrs. Fain’s favor against the plaintiff. W. H. Flynn, the sheriff of Lubbock county, in whose hands the execution was placed, was also made a party defendant. The only basis alleged in the petition for the injunction was that the justice court judgment had been fully settled. The plea of payment consisted in allegations that two former suits in the district court of Denton county, one by Mrs. Mattie Fain against H. C. Ferguson, and the other by H. C. Ferguson against Mrs. Mattie Fain, had been settled by compromise judgments, and that one of the considerations for such compromise was an agreement by Mrs. Mattie Fain that the justice court judgment first mentioned should be fully satisfied.

In the judgments rendered in the former suits, no mention is made of any satisfaction of the justice court judgment, and there was no error in admitting the pleadings in those suits for the purpose of determining the issues therein settled by the judgment.

Nor was there prejudicial error in admitting in evidence an execution issued on the justice court judgment sought to be enjoined in this suit and returned unsatisfied, as there was no contention that the judgment was paid at that time.

The fifth, sixth, seventh, ninth, tenth, and eleventh assignments of error, complaining of the admission of certain evidence, cannot be considered for the reason that those assignments are not presented in compliance with rule 31 (142 S. W. xiii). No statements are made following the assignments showing the numbers of the bills of exception, nor the pages where they can be found in the record; the only reference to the record being to the pages showing the assignments of error and appellant’s motion for a new trial, while some 17 pages of the transcript are devoted to copies of numerous bills of exception.

Hon. E. C. Smith, attorney for Mrs. Fain in the former suits, testified in full relative to the agreement for compromise of those suits, and in effect stated that, according to his recollection, a settlement of the justice court judgment was not included in that agreement. Appellant urged an objection to a further statement contained in the deposition of that witness that in his opinion the reason why the justice court judgment was not mentioned in the former district court judgments was that the district court judgments were not intended to cancel the justice court judgment. The objection urged to this testimony was that the opinion of the witness was not admissible. If this ruling was error, it would not be cause for reversal under rule 62a (149 S. W. x), since it is altogether improbable that it added any weight to the testimony of the same witness already given as to his recollection of the facts.

By other assignments of error complaint is made of certain remarks made by appellee’s counsel in his argument to the jury. It appears from the bill of exception that some of the remarks by counsel, to which the objection was urged, were excluded by the trial judge at the time the objection was made. Appended to the bill of exception is a statement by the trial judge that certain other remarks shown in the bill of exception and indicated in parentheses were also excluded, but no such parenthetical marks are shown in the record, and hence we cannot determine the remarks to which such reference is made. However, some of the remarks contained in the bill of exception, such as that the levy of a former execution on appellant’s homestead indicated that he had no property in Denton county subject to execution at the time of such levy, and further that appellant had since acquired considerable property, we think was warranted by the testimony, and, as appellant’s objections were urged to the argument as a whole, there was no error in overruling the objection. The compromise judgments rendered in the former suits in the district court did not of themselves evidence satisfaction of the justice court judgment, and clearly there was no error in refusing appellant’s requested peremptory instruction that those judgments were conclusive evidence of such a settlement.' We are of the opinion, further, that the judgment rendered in this suit is amply supported by the evidence.

The judgment is affirmed.


author: MOURSUND, J.

text:
    SALLIWAY v. GRAND LODGE, A. O. U. W. (SALLIWAY, Intervener).
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1914.
    Rehearing Denied March 18, 1914.)
    1. Appeal and Error (§ 302) — Presentation below — Motion por New Trial.
    Paragraphs of plaintiff’s motion for new trial, assigning error “because on the face of the pleadings and the undisputed testimony plaintiff was entitled to recover,” and “in finding that the facts and evidence in the case were not such as to estop the defendant to deny the amount claimed,” were too general to support assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.]
    2. Appeal and Error (§ 759) — Brieps—As-signments op Error.
    Courts of Civil Appeals rule 29 (142 S. W. xii) requires appellant to file a brief of the points relied on in accordance with and confined to the specifications of error, which assignment shall be copied in the brief, and each assignment not so copied and accompanied with its appropriate propositions and statements shall be deemed abandoned, and rule 30 (142 S. W. xiii) provides that each point under each assignment shall be stated as a proposition, unless the assignment sufficiently discloses the point, when it shall be sufficient to copy the assignments. Bold, that assignments in appellant’s brief should be copies of those contained in the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    3. Appeal and Error (§ 301) — Assignments op Error — Motion for New Trial.
    Courts of Civil Appeals rule 24 (142 S. W. xii) provides that a ground of error not distinctly set forth in the motion for new trial is waived, unless it is so fundamental that the court would act upon it without an assignment of error, and section 25 provides that, to be a distinct specification of error, an assignment of error must refer to that part of the motion for a new trial in which the error is complained of. Held, that the purpose of the rules was to confine appellant in the Court of Civil Appeals to such grounds of error as were brought to the trial court’s attention in the motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 801.]
    4. Appeal and Error (§301) — Presentation below — Motion for New Trial.
    Acts 33d Leg. c. 136, amended Bev. St. 1911, art. 1612, so as to require appellant to file assignments of error specifying the grounds on which he relies, provided that, where a motion for new trial is filed, the assignments therein shall constitute the assignments of error, and that all errors not distinctly specified are waived, but an assignment shall be sufficient which directs the court’s attention to the error complained of. Held, that the statute required all errors to tie called to the trial court’s attention in the motion for new trial in order to be reviewed.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.]
    Appeal from District Court, Bexar County; R. H. Ward, Judge.
    Action by Earl Journeay Salliway against the Grand Lodge, A. O. U. W., in which Ella B. Salliway intervened. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Mangum & Townsend and W.. S. Anthony, all of San Antonio, for appellant, j. E. Yan-tis, of Waco, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases.see same.topic and section NUMBER in.Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

Appellant, Earl Journeay Salliway, sued appellee to recover the amount of $2,000, alleged to be due him upon a benefit certificate issued by appellee to H. B. Salliway. Ella B. Salliway filed a petition of intervention claiming the $2,000. In view of the disposition necessarily made of this appeal, it will be unnecessary to state the issues made by the pleadings. The trial before the court resulted in a judgment that plaintiff and intervener take nothing. Plaintiff filed a motion for new trial, which was overruled, and the appeal was taken by him.

Appellant presents six assignments of error. The first; second, and sixth, refer to and are based upon paragraph 5 of the motion for new trial, while the third, fourth, and fifth refer to and are based upon paragraph 6 of said motion. Said paragraphs read as follows:

“(5). Because, on the face of the pleadings and the undisputed testimony, the plaintiff was entitled to recover, and should have had judgment for amount sued for.
“(6) Because the court erred in finding that the facts and evidence in the case were not such as to estop the defendant to deny the amount claimed under his policy of insurance.”

These paragraphs of the motion for new trial are too general to support assignments of error based thereon. Connor v. Saunders, 9 Tex. Civ. App. 56, 27 S. W. 1140; Jenkins v. American Co. (Sup.) 2 S. W. 726; Musick v. O’Brien, 102 S. W. 458; Texas Land & Irrigation Co. v. Sanders, 113 S. W. 558; Railway v. Miller, 124 S. W. 109; Railway v. McVey, 81 S. W. 991. The case was appealed upon the motion for new trial; no formal assignments of error being filed. Such motion having been filed after the act of the Thirty-Third Legislature (Acts 33d Leg. c. 136), amending article 1612, became effective, the appeal could be prosecuted upon the assignments contained in such motion. But paragraphs 5 and 6, if used as assignments of error, are too general to be considered; it being undertaken thereby to raise issues of fact. See authorities above cited. Nor are such paragraphs copied into the brief. The assignments contained in the brief are entirely different from said paragraphs of the motion for new trial. Each challenges the correctness of the judgment of the court upon the facts, giving reasons why the judgment is claimed to have been rendered contrary to the evidence.

Assignments in the brief, which are not copies of those contained in the record, have often been condemned by our courts. Rules 29 and 30 for Courts of Civil Appeals (142 S. W. xii, xiii); Tabb v. Smart (Sup.) 12 S. W. 977; Horseman v. Coleman County, 57 S. W. 304; Tucker Produce Co. v. Stringer, 146 S. W. 1002; Bray v. Bank, 145 S. W. 290; Mt. Franklin Lime Co. v. May, 150 S. W. 756; Biggs v. Lee, 147 S. W. 709; Dignowity v. Sullivan, 49 Tex. Civ. App. 582, 109 S. W. 428.

The amendments to rules 24 and 25, made by the Supreme Court, effective January 1, 1912 (142 S. W. xii), were for the purpose of confining the appellant in the Court of Civil Appeals to the submission of only such grounds of error as were brought to the attention of the trial couyt in the motion for new trial. See Railway v. Pemberton (Sup.) 161 S. W. 2. When the Thirty-Third Legislature amended article 1612, it gave its approval to the views of the Supreme Court by making the motion for new trial the assignment of errors when a motion is filed, but permitted the repetition of such assignments by filing formal assignments of error. -A requirement made by the Supreme Court, not approved by the Legislature, was the one re; quiring the assignment to refer to the paragraph of the motion for new trial in which the error was called to the attention of the trial court. Conn. v. Rosamond, 161 S. W. 73; Childress v. Robinson, 161 S. W. 78.

While the said amended article 1612 indicates a legislative intent to require a more liberal construction of assignments than had been indulged prior to its amendment, yet it shows plainly an intent to require all errors to be called to the attention of the trial court in the motion for new trial. The paragraphs of the motion for new trial upon which the assignments in this case are attempted to be based do not indicate to the court wherein his ruling conflicts with the evidence, and the matters so fully set out in the assignments in the brief were not called to the attention of the trial court in the motion for new trial. This court held in the case of City of San Antonio v. Bodeman, 163 S. W. 1043, not yet officially reported, that where a motion for new trial was filed, and afterwards formal assignments of error, an assignment embraced therein, to the effect that the judgment was unsupported by evidence in a particular-not pointed out in the motion for new trial, could not be considered. We conclude that, in justice to appellee, the objections urged by it, to the consideration of the assignments of error contained in the brief, must be sustained. We therefore decline -to- consider the assignments of error, and, as we find no fundamental error in the record, it becomes our duty to affirm the case.

Judgment affirmed.


author: FLY, C. J.

text:
    WARD et al. v. SAN ANTONIO LIFE INS. CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 11, 1914.
    On Motion for Rehearing, March 18, 1914.)
    1. Bills and Notes (§ 452) — Actions—Defenses. • ■ '
    An agreement by the payee of notes secured by trust d,eed to notify a third party, who had assumed the notes, in a county other than that in which the maker lived and in which thé notes were payable when they became due, being without consideration, was no defense to an action on the notes after they became due.
    [Ed. Note. — For other cases, see Bills, and Notes, Cent. Dig'. §§ 1303, 1352-1364, 1367-1376; Dec. Dig. § 452.]
    2. Estoppel (§ ’78) — Equitable Estoppel-Grounds of Estoppel — Representations.
    The fact that the payee of notes, secured by trust deed providing that all should become due if any remained unpaid for ten days after maturity, promised to notify a party in another county, who had assumed the notes, when any should become due did not estop him from maintaining an action after default, since such a promise, not being the affirmation of the existence of a fact, could not form the basis of an equitable estoppel, and besides the parties were not misled, as they knew when the notes would become due.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §■§ 204-210; Dec. Dig. § 78.]
    3. CORPORATIONS (§ 406) — Representation by Officers and Agents — Contracts — President. '
    The president of a corporation had no implied authority, merely by virtue of his office, even though he had the management and general control of the corporation, to bind the corporation by an agreement, without consideration, to notify and send a note, payable to the corporation, to a third party in another county, who had assumed the payment.
    - [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1611-1614; Dec. Dig. § 406.]
    On Motion for Rehearing.
    4. Mortgages (§ 401) — Foreclosure—Time of Maturity.
    Where, by the terms of a deed of trust given to secure the payment of notes executed contemporaneously therewith, it was provided that all should become due if any remained unpaid for ten days after maturity, an action could be maintained upon all the notes when one was not so paid, though by the terms of the notes they were not due.
    [Ed. Note. — For other cases, see Mortgages, • Cent. Dig. §§ 1160-1165, 1208, 1209; Dec. Dig. § 401.]
    5. Mortgages (§ 235) — Assignment or Transfer of Debt.
    A note and a trust deed given to secure it are so blended and merged into each other that an assignment or transfer of the note carries with it the mortgage lien without any transfer of the latter.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 620, 621; Dec. Dig. § 235.]
    Appeal from District Court, Bexar County; R. H. Ward, Judge.
    ■ Action by the San. Antonio .Life Insurants^ Company against H. Ward- and others.. Frojp a judgment for. plaintiff, defendants appeal.
    Affirmed.
    Guinn & McNeill,- of San Antoiiio,' for appellants. Jno. F. Onion and Jno. F. Onion, Jr., both of San Antonio, for appellee.

      For other cases see-same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r indexes

   FLY, C. J.

This is a suit on two notes, one for $3,500, principal' of the debt, and. the other a coupon interest .note for $105, ,and to foreclose a lien on • 721% acres of. land in Jack county, Tex.,, instituted .by appellee against H. Ward,.J. D. Guinn, L. T.. Adams, and Nevada Adams. • ■ The cause was disr missed as to Nevada Adams, and a trial .by jury resulted in á verdict and judgment in favor of appellee for .the amount of the notes and a foreclosure;of the lien..

• Appellants, in theij; answer, admitted that Ward had executed tlje notes and deed of trust, said notes on their face being payable in Bexar county, but sought to avoid payment on the ground that H. A. Hodge, 'president of the insurance company, ha.d been informed that Adams and Guinn had assumed the payment of the notes, having bought the land from Ward; that Adams lived in Jack county; that , said ' Hodge . had promised Adams, before the maturity of the coupon note, that he would send the same to Jaeks-boro, Jack county,, for collection, when it became due, and stated that Adams need not pay the same in San Antonio; that Adams notified Ward and Guinn of said agreement, and they, relying on the same, did not pay said coupon note when it became due, and appellee, as authorized by the notes sued on, declared all of. the. debt due and demanded payment of the same; that they offered to pay off and discharge the coupon note, but appellee had refused to accept the same., The court sustained exceptions to that part of the answer setting up the defense herein stated.

The deed of trust provided that, if any of the noies remained unpaid for ten days after maturity, the principal and interest should, without notice, become due, and the'holder could collect the same by suit or otherwise. It is admitted that the coupon note for $105 became due on August 7, 1911, and was not paid for ten days thereafter, and this" suit was instituted upon refusal of appellants to pay the principal and interest of the debt. No tender of the amount of interest was ever made. ' .

The answer did not set up any legitimate defense to the notes. It was not' alleged that appellee had authorized Hodge tb make any such agreement as that alleged in the answer, and, if he had been so authorized, there was no consideration for such agreement. The pleadings failed to indicate what good could arise to. appellee by having' it's notes paid by Adams in a distant county, 'while the maker of the note and Guinn lived in San Antonio. The fact that it was customary for appellee to' send its collections to its depository banks in other counties, and that it had a depository bank in Jacks-boro, could not avail as a defense, nor could the fact that Adams had assumed payment of the notes be offered as a defense. He had assumed payment of the notes in furtherance of his business arrangements, and was bound on that assumption before any such agreement was made, for it was alleged in the answer “that the plaintiff, through its president, Henry A. Hodge, knowing Adams and Guinn had assumed their payment,” made the agreement with Adams. There was absolutely no consideration for the agreement alleged in the answer.

The facts alleged in the answer fail to create an estoppel." It was at most a naked promise to do or perform a certain thing in the future, namely, send the notes for collection to Jaeksboro. Conduct creating an estoppel must amount to a representation or a concealment of the existence of certain facts, and such facts must necessarily be something that has existed, or is existing at the time of the representation. Statements as to future facts amount to nothing but opinions or promises to do or not to do certain things. A statement of intention to do a certain thing is not the affirmation of the existence of a fact, but merely amounts to a promise which cannot form the basis for the creation of equitable estoppel. Pom. Eq. § 877 et seq. The transaction alleged in the answer had none of the elements of estoppel. Nothing of any value whatever could have accrued to appellee by' the promise to send a notice to Adams. There could have been no necessity for such notice, because Adams already knew the note would become due on August 7, 1911, and it was incumbent on him to pay it without a notice. Appellants cannot evade the consequences of his neglect, because appellee failed to give notice that the note was due.

A promise to abandon a certain right may become the basis of estoppel in pais, if made to influence others, and by which they have been induced to act so as to change their position for the worse. Edwards v. Dickson, 66 Tex. 613, 2 S. W. 718. The facts in that case were that an execution was not levied on certain goods, because the owner promised the attorneys of the plaintiff in the judgment not to transfer them, but keep them subject to levy, and the court held: “Now, if there Was no agreement on part of the attorneys to accept the offer of appellant, it was a mere declaration of intention or naked promise as to future conduct, and, under the rule laid down, cannot estop, although acted upon by the party to whom made. If accepted by the attorney, the promise contained every element of a contract, and upon its breach the plaintiff in execution had his remedy at law.” That language is peculiarly applicable to the facts alleged in the answer of appellants, which attempts to set up estoppel in pais against appellee.

The facts alleged show that nothing was promised or stated by Hodge that deceived appellants or induced them to act to their disadvantage. They knew the note became due on August 7, 1911; they knew that a failure to pay it for ten days thereafter would automatically cause the principal note to become due also; they knew that they had not paid the note; and, if any additional burdens have been placed upon them by a failure to pay the note, they alone are responsible for it. A mere failure to notify Adams that the note was due cannot estop appellee from the collection of its debt. Adams and the other appellants knew as well as appellee that the debt was due and that it should be paid.

It was not alleged that Henry A. Hodge had the authority to make the promise to relinquish a valuable right held by the corporation. The president of a corporation has no implied authority, merely by virtue of his office, to surrender rights of the corporation, not even when he has the management and general control of the corporation, except for a consideration and in the usual course of business. Clark & Marshall, Priv. Corp. § 701, pp. 2132-2143. If Henry A. Hodge did make the agreement, as alleged by appellants, the corporation, under the allegations, was not bound by his promise.

The judgment is affirmed.

On Motion for Rehearing.

No question was raised in the lower court as to the maturity of the debt, but for the first time that question is sought to be injected in the motion for rehearing. It was alleged in the petition that the notes were secured by a deed of trust in which it was provided that the failure to pay any of the promissory notes would mature all of them; that one of the notes had not been paid, and the principal and interest notes became due and payable at the option of appellee; and that such option had been exercised. All of those facts were proved.

Where, by the terms of a mortgage or deed of trust, a note is to become due upon the happening of certain contingencies, suit may be instituted upon the happening of such events, although, by the terms of the note itself, it is not due. Pfeuffer v. Wilderman, White & W. Civ. Cas. Ct. App. § 1169. That opinion was written by Judge Quinan of the Commission of Appeals, and has never been questioned. Whatever may have been held by courts of other states, we think the views of the Texas court the more reasonable. The notes and deeds of trust were parts of one and the same transaction, and were mutually dependent on each other.

The case of Rogers v. Watson, 81 Tex. 400, 17 S. W. 29, is also in point. In that case a series of notes were held to have been matured by tbe failure to pay tbe first note, in which there was no provision for a failure in its payment to mature the other notes, but there was such a provision in a contemporaneous deed of trust. It may be noted that the case of Railway v. Sprague, 103 U. S. 761, 26 L. Ed. 554, cited by appellants, does not sustain their contention'. In that case there was a provision in the bonds and mortgage as to the maturing of the bonds, which differed, and it was merely held that the bonds would prevail. There is nothing in the notes in this case about the failure to pay one note maturing the others; consequently there was no conflict with the provision in the deed of trust.

In Texas a promissory note and the lien that secures it are so blended and merged into each other that the assignment or transfer of the note carries with it the mortgage lien without any transfer of the latter. White v. Downs, 40 Tex. 231; Railway v. Bremond, 66 Tex. 159, 18 S. W. 448; Hamblen v. Folts, 70 Tex. 132, 7 S. W. 834. They are considered to form one transaction, and the provisions in the instrument evidencing the lien would necessarily be read into and become a part of the note it was given to secure. The evidence shows a contemporaneous execution of the notes and deed of trust. They constituted one transaction, one contract

The following allegations are found in the answer of appellants: “The defendants admit the execution of the principal and coupon interest notes by the said H. Ward, containing the terms and conditions alleged by the plaintiff, and likewise admit the execution of the deed of trust alleged, and that the defendants J. D. Guinn and L. T. Adams were at the institution of this suit, and now are, the owners of the lands described, and assumed the payment of the principal note and coupon interest notes executed by the defendant H. Ward; that the coupon interest note, which according to its face, was due the 7th day of August, 1911, was not paid on said date.” Those allegations were not excepted to, but remained as a part of the answer of appellants. They admitted appellee’s ease.

The motion for rehearing is overruled.


author: DUNKLIN, J.'

text:
    SENTER v. TEAGUE et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 17, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Appeal and Eeeoe (§ 1064) — Haemless Eeeoe — Instructions—Weight op . Evidence.
    In an action on a note executed by defendants P. and S. in renewal of a note by S. alone, S., by way of estoppel, showed that he had held a note against P. secured by mortgage on the same property as that covered by plaintiff’s mortgage and on other property as security for an open account due from P., which note he sold to a third person, that plaintiff agreed that he would accept a note executed by P., with sureties other than S., in lieu of his note against P. and S., and wrote to such third person that P. had arranged to take up the first note, and that S. was released from liability thereon, that in reliance thereon S. agreed to an extension of the note held by such third person, and released P. from liability on the open account. Held, that an instruction directing a verdict for defendant, if such plea was established, if not as-favorable as he was entitled to, was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. | 1064.]
    2. Appeal and Eeeoe (§ 1170) — Haemless Eeeoe — Instbuctions—Rule.
    In such action there was evidence that plaintiff had agreed to cancel the note if P. would execute and deliver a satisfactory notej with sureties other than S., which was never done, and that plaintiff had only said to such third person that P. had agreed to make a satisfactory settlement of the note, and no evidence that S., the codefendant, signed a renewal with P. to such third person, instead of merely reducing the account he held against P., or against proof that P. was insolvent, so that no substantial part of tbe account due to S. could have been collected. The court instructed that, if the only agreement was that made by plaintiff .to cancel the joint note upon P.’s execution of another bankable note, and that if the note offered by P. was not satisfactory, plaintiff could recover against both defendants. Rule 62a for Courts of Civil Appeals (149 S. W. x) forbids reversals for error, unless it was such a denial of the appellant’s rights as probably caused the rendition of an improper judgment, or prevented him from a proper presentation of the case to the appellate court. Held, that any error in such instruction was not reasonably calculated to cause, and did not probably cause, the rendition of an improper verdict, and hence was not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. 8* 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    3. Teial (§ 253) — Instbuctions—Estoppel.
    In an action on a note, requested instructions for defendant on the plea of estoppel, ignoring the issue of defendant having placed himself in a worse position by reliance thereon, were properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    4. Depositions (§ 70) — Suppression — Knowledge and Belief.
    The fact that depositions were sworn to as being true to the best of deponent’s knowledge and belief, instead of stating that the answers were true absolutely, was no ground for suppressing them, especially where the answers themselves were direct and positive statements, and in no sense the opinion of the witness, or based on hearsay.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 161-164; Dec. Dig. § 70.]
    5. Principal and Surety '(§ 16) — Creation of Relation — Change fbom Principal Debtor to Surety.
    The fact that a defendant, in an action on a note, agreed with another defendant who had made the note to assume the payment of it would not of itself show that thereafter the holder could hold the original maker as surety only.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 35; Dec. Dig. § 16.]
    6. Bills and Notes (§ 511) — Evidence-Materiality.
    In an action against two makers of a note given in renewal of a note executed by one of the defendants alone, in which the original mak-
      ex’ Claimed a discharge'by estoppel, evidence of the other defendant that he, a third person, and such original maker agreed that such third person would renew his note against defendants, and rélease the original maker therefrom, if witness would bring a statement from plaintiff releasing such maker, was properly excluded: since such agreement would in no manner affect the plaintiff.
    [Ed: Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1760-1770; Dec. Dig. § 511.]
    7. Bills and Notes (§ 504) — Admissibility of Evidence — Loss to Surety.
    : • In an action on a note, plaintiff’s evidence as to the splvency of one of the defendants, that, if he had anything, he had never heard of it or seen it, was material, as showing that the other defendant sustained no loss by releasing an account which he held against his codefendant.
    1 [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1719-1727; Dec. Dig. § 504.]
    8. Evidence (§ 322) — Admissibility—Hear- . SAY.
    Such evidence was not objectionable as hearsay, where plaintiff was in such a position that, if such maker owned any property, he would likely have known of it.
    [Ed; Note. — Fof other easfes, see Evidence, Cent; Dig. §§ 1203-1213; Dec. Dig. § 322.]
    ■. Appeal from Johnson County Court; J. B. Haynes, Judge.
    ' Action by T. A. Teague against J. W. Patrick and J. M. Senter. Judgment for plaintiff, and defendant Senter appeals.
    Affirmed.
    . W. B. Harrell and S. C. Padelford, both of Cleburne, for appellant. W. H. Spinks, of Alvarado, and Walker & Baker, of Cleburne, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other caseh See same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rép’r Indexes

   DUNKLIN, J.'

T. A. Teague instituted this suit against J. W. Patrick and J. M: Senter upon a promissory note executed by the defendants in favor pf the plaintiff, and, from .a judgment in favor of the plaintiff, Senter has appealed.

' Tire evidence shows, that the note in suit was a renewal of another note executed by Senter alone as consideration for two mules fjio.ld to him by Teague. The mules were afterwards. sold by Senter' to Patrick, who ássúmed payment of the note. The principal defensé urged by Senter consisted of the contention that he was released by Teague from liability upon the note by reason of the following facts alleged , in' his answer, to ivit: Senter held another note against Patrick secured by a mortgage on the same property covered by plaintiff’s mortgage, as well as other property, which he sold to Dr. Campbell; 'and which Patrick desired to renew with' Campbell. Patrick, who was a tenant of Senter, was also indebted to Senter in the - sum of about $180 upon open account, which was likewise secured by the same mortgage transferred' to Campbell. Senter Was' unwilling to a renewal of the note held by Campbell against Patrick, "unless Teague would release him from liability upon the note held by him-against Patrick and Senter, but was willing to agree to a renewal of the note held by Campbell, and also to discharge the account he held against Patrick, if Tea-gue would release him from liability on the note which Teague held. These facts were communicated to Teague, who thereafter agreed with Patrick that, if the latter would execute to him a new note with sureties other than Senter, satisfactory to Teague, he (Teague) would accept the same in lieu of the note he then held against Senter and Patrick, and at the same time wrote a letter to Campbell, which was afterwards duly delivered and later shown to Senter, stating, in substance, that Patrick had made satisfactory arrangements to take up the note of Senter and Patrick, and that Senter had been released from liability upon that note. Senter further alleged that, relying upon said representations by Teague, he agreed to an. extension of the note held by Campbell, and also released Patrick from liability upon the open account, and hence upon the principle of estoppel he had been discharged from liability to Teague upon the note sued on.

There was evidence tending to support the allegations of fact recited above in the plea of estoppel, all of which was submitted in detail in the second paragraph of the court’s charge to the jury, with an instruction that, if those facts had been established by the evidence, a verdict should be returned in favor of Senter. Several assignments of error are presented to that paragraph of the charge, substantially to the effect that, if it was shown by the evidence that Teague wrote to Campbell such a letter as pleaded, stating that Senter was released from liability on the note in suit, and that, relying upon the same, Senter consented to a renewal of the note held by Campbell, and also surrendered the account held by him against Patrick, those facts alone would constitute a sufficient defense to the note independent of other facts pleaded, and that the effect of the charge was to require the jury to find all of the facts pleaded as an estoppel before a verdict could be returned in his favor. The instruction was favorable to Senter; in no wise did it authorize a verdict in favor of the plaintiff; it followed the allegations contained in Senter’s plea of estoppel, and, even though it. should be held not as favorable to him as he was entitled, still it cannot be said to be such an error as would require a reversal of the .judgment. Abilene L. & W. Co. v. Robinson, 146 S. W. 1052, and cases there cited.

Teague testified, in effect, that when Patrick, requested of him a release of Senter. from liability on the note in suit, he agreed with Patrick to cancel that note, if Patrick would execute and deliver to him a new note with sureties thereon that would be accepted and cashed by the bank at Alvarado, and' that that was the only agreement he made with Patrick relative to' a cancellation of the note in question. He further testified that Patrick mentioned the names of two per-. sons whom he said he could get to sign a new note with him as sureties; that he asked the cashier of the bank whether or not a note signed by those two men as sureties would be accepted by him as a bankable note, and that the cashier replied in the negative; that later he told Patrick that the bank would not accept such a note; that Patrick never offered such a note to him thereafter; that the written communication he sent to Campbell contained nothing more than a statement that he and Patrick had “agreed to make a satisfactory settlement or arrangement” of the note in controversy in this suit.

By the third paragraph of the court’s charge the jury were instructed that, if the proposition by Teague to Patrick detailed by Teague in his testimony and noted above, was the only agreement or proposition which was made by Teague to Patrick, and the note which Patrick proposed to give Teague was not such a note as the bank would accept and pay cash therefor, then a verdict should be returned in favor of Teague against Senter, as well as Patrick. By several assignments appellant insists that, if the communication addressed to Campbell by Teague contained the statement, as testified by two or three witnesses, that Sen-ter had been released from the note in controversy, and if Senter saw the communication, and was induced thereby to agree to an extension of the note held by Campbell, and to release his account against Patrick, plaintiff would be estopped from holding him liable in this suit, and that the instruction contained in the third paragraph of the charge and last noted' had the effect of excluding this defense. Under none of the assignments complaining of that paragraph of the charge is there a statement of any evidence showing that appellant sustained any loss by reason of his reliance upon the statement contained in the communication to Campbell. No evidence is pointed out to show that appellant signed a renewal note with Patrick to Campbell, instead of merely releasing the account he held against Patrick and the lien to secure the same without signing the renewal, as indicated was done by certain portions of Patrick’s deposition offered by appellant, and the refusal of which is made the basis of the nineteenth assignment of error. There is a statement that he told Patrick that he released him from the account which Patrick owed him, amounting to about $180; but no testimony is'referred to in the statement under the assignments to refute the testimony of Teague and other facts and circumstances in evidence which seemingly estáblish the conclusion without doubt that Patrick was insolvent, and hence that no substantial portion of the account he owed appellant could have been collected.

Furthermore, the instruction in the third paragraph begins with the expression, “on the other hand, you are instructed that, if you find from the evidence that the only' agreement or proposition which was made by the plaintiff to J. W. Patrick to pay off and satisfy or release or cancel the note sued upon was the execution of another note which the said Patrick was to have executed, and that it was to be a bankable note, that is, one that would be accepted by the bank in Alvarado, and cashed by the said bank,” thus indicating that the court intended to submit to the jury the negative of the alleged facts set out in the second paragraph, relative to what Teague agreed to do; in other words, to submit the converse of those' facts. And if it be true, as submitted in the third paragraph, and evidently as found by the jury, thát' the only proposition or agreement made by Teague was that he would release Senter'from the note in the event only that Patrick should deliver to him in lieu of the note sued on another note which could be cashed in the bank, then it would follow necessarily that Teague did not write a letter to Campbell agreeing that Senter had been released from the note in controversy. At all events, if there was error in the instruction contained in the third paragraph of the charge, we cannot say that the same was reasonably calculated to cause, and probably did cause, the rendition of an improper verdict. Rule 62a (149 S. W. x).

Error has been assigned, also, to the refusal of several requested instructions upon the plea of estoppel, but the refusal of which was not error for another reason, and that is, that they ignored the issue of appellant having placed himself in a worse position by reason of relying upon the- communication addressed to Campbell by Teague.

The fact that the depositions of Patrick were sworn to by him as being .true to the best of his knowledge and belief, instead of stating that the answers were true absolutely and unqualifiedly, was no ground for suppressing the depositions, especially in view- of the fact that the answers themselves appear to be direct and positive statements, and in no sense the opinion of the witness, or based on hearsay.

There was testimony tending to show that the animals covered by the mortgage held by Teague died from starvation, and that before they died Teague was notified that they were without feed, but that he failed to take charge of them, or care for them, or to make any arrangements therefor. By the eleventh assignment of error complaint is made of the refusal of a requested instruction to the effect that, if Teague was notified of their condition in time to have prevented their loss by properly caring for them, and that his failure to do so was negligence, and that if the jury should find that Senter was á surety on the note held by Teague, and that Teague wrote a letter to Campbell stating that Senter had been released from the note, then the amount of the verdict against Senter would be limited to the difference between the amount due on the note and the reasonable value of the animals at the time Teague was informed that they were without feed, and probably would die, unless cared for. A sufficient answer to this assignment is that there is no evidence in the record to show that as between the plaintiff Teague and appellant the latter was a surety only upon the note. The fact that Patrick agreed with Senter to assume the payment of the note originally given by the latter to Teague would not of itself show that thereafter Teague could hold Senter upon the note as surety only, as insisted by the eighteenth assignment of error.

There was no error in excluding the answer of Patrick shown in his deposition to the effect that he, Campbell, and Senter agreed that Campbell would renew the note held by Campbell against Patrick and Senter, and release Senter therefrom, if the witness would bring a statement from Teague releasing Senter from the note in suit, since that agreement could in no manner affect Teague.

By the twentieth assignment complaint is made of the admission of the testimony of plaintiff as follows: “As to the solvency of Patrick, if he has got anything, I never heard of it and never saw him with it.” The objection urged to that testimony was that it was immaterial and hearsay. This evidence was certainly material to show that appellant sustained no loss by releasing the account he held against Patrick, and, as Teague was in such a position that, if Patrick owned any property, he would likely have known of it, we do not think the evidence was objectionable as hearsay.

. The judgment is affirmed.


author: HUFF, C. J.

text:
    PRICE et al. v. LOGUE.
    (Court of Civil Appeals of Texas. Amarillo.
    March 7, 1914.)
    1. Judgment (§ 461) — Equitable RelieiN-Burden oe Prooe.
    In an equity suit to be relieved from liability on a judgment because of the release of the principal obligors on the note sued on, the burden is on the complainants to show the release.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 892, 893, 895; Dec. Dig. § 461.]
    2. Vendor and Purchaser (§ 261)- — Merger — Legal and Equitable Title.
    Where a deed is given to a vendor by the vendee to satisfy the indebtedness and the vendor before that time has sold the note to another, the legal and equitable title do not coalesce in the vendor’s hands, but he holds the land subject to the lien he has transferred.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674r-686, 688-695; Dec. Dig. § 261.]
    3.Attorney and Client (§ 101) — Authority— Settlement oe Judgment.
    An attorney cannot bind his client in the settlement of a judgment unless he was specifically authorized so to act.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 209-216; Dec. Dig. ]
    Appeal from District Court, Armstrong County; Jas. N. Browning, Judge.
    Suit by W. A. Price and others against Roseoe Logue. From a judgment for defendant, complainants appeal.
    Affirmed.
    Knight & Slaton, of Hereford, Synnott & Underwood, of Amarillo, and J. S. Stallings, of Claude, for appellants. R. R. Hazlewood, of Amarillo, and W. A. Wilson, of Claude, for appellee.

      For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

The appellant Price brought suit to enjoin appellee, Roseoe Logue, and J. D. Woodburn, on a certain judgment rendered in the district court of Armstrong county, in favor of Roseoe Logue, against appellants Price and Woodburn, and in favor of Woodburn over against Price. The trial court, by judgment, refused relief prayed for, and in this case filed findings of fact and conclusions of law. The appellants Price and Woodburn appeal therefrom. The facts will disclose the issues.

On the 6th day of January, 1909, J. D. Woodburn, by general warranty deed, conveyed to W. A.'Price a certain block of land in the town of Hereford, and as a consideration therefor W. A. Price executed his note payable to the order of J. D. Woodburn, in the sum of $600, due two years after date, with 8 per cent, interest from date, and the usual 10 per cent, attorneys’ fees. A vendor’s lien was retained in the note and deed to secure the payment of the note. W. A. Price thereafter by deed conveyed the land to Mrs. Minnie Witthauer, and at the request of her husband, for the consideration of $750, $50 of which was the amount due her husband, Ed Witthauer, for commission in the sale of land, and $100 cash paid by him, and also a cash payment of $100 credited on the note, and the assumption of the balance due on the note. The deed was executed to Mrs. Witthauer, at the request of her husband. She at that time knew nothing of the transaction. Ed Witthauer also assumed the payment of the balance due on the note. The note was transferred thereafter to Roseoe Logue by J. D. Woodburn, the payee in the note, by indorsement. After maturity, suit was brought on the note in the district court of Armstrong county, against Price, Wood-burn, and Ed Witthauer, to recover the sum due thereon and to foreclose the vendor’s lien on the land. Ed Witthauer was served by nonresident notice; he at that time, and since, residing in the state of Kansas. Personal service was had on Price and Wood-burn in this state. Judgment was taken for the sum of $611.55, with foreclosure of the vendor’s lien. Woodburn answered in that case by attorney. Price and Witthauer made default. Personal judgment was rendered against Price and Woodburn, jointly and severally, for the debt with a foreclosure of the lien and also a foreclosure of the lien as against Ed Witthauer by default. Woodburn was given judgment over against Price for any amount which he might be compelled to pay on the judgment; the court finding in that judgment that Woodburn was liable on the note as indorser. That judgment was rendered April 4, 1911. Execution and order of sale were duly issued and levied on the land in question; but, for some reason not fully disclosed by the record, the sale was not made.

June 2, 1912, the Witthauers, husband and wife, by deed made to J. D.. Woodburn, for the recited consideration of $600 and purporting to convey the land, sent the deed to the First National Bank of Claude, together with a letter instructing the bank to deliver the deed to J. D. Woodburn, “upon the surrender of a note given by W. A. Price to J. D. Woodburn, in the sum of $600.00, and interest; also ask that you get judgment against Ed Witthauer canceled on the records of Deaf Smith county, Texas. The above note was assumed by Mrs. Witthauer.” The letter was signed by Ed Witthauer. It is admitted that James Logue is the father of Roscoe Logue, and had authority to act for his son, and in fact he was the beneficiary in the suit of foreclosure and controlled the same as such. The facts show, some time after the Witthauer deed was received by the bank, that J. D. Woodburn offered James -Logue $250 in money if he would accept a deed to the premises in question and release him (Woodburn) from further liability. This proposition Logue refused to accept. Neither James nor Roscoe Logue were in any way connected with or instrumental in getting the Witthauers make the deed to J. D. Woodburn and to send it to the bank and had nothing to do with taking it from the bank and having it placed of record in Deaf Smith county, unless the act of attorney W. A. Wilson, who represented Logue in the foreclosure proceedings, was acting for Logue at the time the deed was taken from the bank and by his act bound Logue in the transaction. W. A. Wilson, in the summer of 1912, got the deed made by the Witthauers to J. D. Woodburn from the bank and caused the same to be recorded in Deaf Smith county, on March 4, 1913. The deed from the Witthauers was made at the instance of J. D. Woodburn, who previous thereto wrote Witthauer, asking if he could see him while in Kansas; and while Woodburn was in Kansas he saw Witthauer, who then promised to make the deed and send it to the bank, but upon the condition that the note should be turned over to him and the judgment against him canceled or released. Woodburn, after the deed was placed in the bank, made the proposition to pay the $250 and deed the land to Logue. This Logue refused to accept. A day or so thereafter Logue met Mr. Wilson in the county clerk’s office and casually mentioned the fact of the deed being in the bank. The trial court finds, and the evidence sustains it, that Wilson, on his own accord, went to the bank and secured possession of the deed and thereafter had it recorded without the knowledge or consent of either Logue or Woodburn, both of whom disclaimed any right to or under the deed. The court finds, and the evidence sustains the finding, that Logue knew nothing of this act on the part of Wilson until after the suit now prosecuted was first filed, which appears to have been dismissed and reinsti-tuted. Logue’s judgment has not been paid or any part of it. Logue did not authorize Wilson to take the deed from the bank and record it or turn over the note to the bank or cancel and satisfy the judgment thereon with the foreclosure. Whatever Wilson did in such matter was without authority from Logue. Logue did not ratify his act in any way, but refused to take less than the full amount of his judgment according to its terms.

This being a suit in equity by Price and Woodburn, to be relieved from the judgment entered against them because of the release of the principal obligors, the Witthauers, on the note, the burden was on them to show such release. When the deed was made, Woodburn at that time had transferred the note to Logue, which was secured by a lien on the land. The legal and equitable title did not therefore coalesce in Wood-burn’s hands. He, if the deed was valid, held the land subject to the lien he had transferred; but it is asserted he did not accept the deed, and that Logue procured the deed and placed it of record for his own benefit, and therefore the legal title is held in trust or by Woodburn for Logue, the beneficiary. Without discussing the effect this transaction would have if the facts supported it, the findings of the trial court as to the facts, which are amply supported by the evidence, dispose of that issue.

It is contended, if Logue did not do so, his attorney in the foreclosure did it, and Logue is therefore bound thereby. In order to bind Logue by the act of Wilson, it is necessary to allege and prove that Wilson was acting for Logue in the matter, and at his instance and request. An attorney cannot bind his client in the settlement of the judgment unless he was specially thereunto authorized so to act. The evidence is clear, positive, and all one way that Wilson had no such authority. Anderson v. Oldham, 82 Tex. 228, 18 S. W. 557; Cook v. Greenberg, 34 S. W. 687; Taylor v. Evans, 29 S. W. 172. It is also urged that Logue ratified the acts of Wilson. We find no allegation in ei-thér of the appellants’ pleadings to that effect, but it is said Logue, after he learned the deed had been taken, told the bank to which the deed had been sent that he would see that it should not suffer. The evidence is that he did not know of this act on the part of Wilson until after this suit was filed. We do not think this evidence a ratification. He in no way accepted the deed, but told Woodburn, when he tried to get Logue to accept it, that he would not take it; that he wanted his money on the judgment.

We think, under the evidence in this case, that Logue is entitled to enforce his judgment against Price and Woodburn and sell the land under foreclosure. If it should be admitted Woodburn got the deed in order to make the property bring more at public sale and that Logue assented thereto, this would not, under the facts, create a merger in so far as Woodburn is concerned, for it clearly was not the intention of the parties that it should do so. Hapgood v. Bank, 23 Tex. Civ. App. 506, 56 S. W. 995. In such an event only the issue between Price and Woodburn would be raised as to which should be treated as the principal obligor. This, however, is not necessary to discuss. As we view the findings of the court, and the evidence in support thereof, Woodburn did not accept the deed under the conditions prescribed by the Witthauers. The court also finds that Logue did not do so. The Witt-hauers did' not convey the land unless the conditions stipulated by them were accepted. There was therefore no conveyance of the land, and the parties are in the same position as if no deed had been made and placed of record. The Witthauers are not released thereby, and Woodburn has no conveyance, and the same now stands as it did when the judgment in the foreclosure proceeding was originally rendered.

We find no error in the judgment of the trial court, and it is in all things affirmed.