Commercial Inv. Co. of Uvalde v. Graves , 1939 Tex. App. LEXIS 384 ( 1939 )

MURRAY, Justice.

This suit was instituted by Commercial Investment Company of Uvalde, Texas, a private corporation, against C. R. Graves and J. W. Vanham, upon a certain promissory note dated January 12, 1933, for the principal sum of $4,029.18, and for. foreclosure of a deed of trust upon certain real estate belonging to C. R. Graves; the deed of trust having been executed by Graves to secure the payment of this note. After the suit was filed C. R. Graves died and his surviving wife and heirs were made- parties. J. W. Vanham defended on the ground that he was an accommodation endorser of the note.

The trial was to .a jury and only one special issue was submitted, to-wit:

“Do you find from a preponderance of the evidence that J. W. Vanham signed the note in evidence, dated July 12, 1932, at the'instance and for the benefit of the Commercial National Bank for the sole purpose of enabling said Bank to use said note as collateral in obtaining a loan from Reconstruction Finance Corporation with the understanding with the Commercial National Bank that said Bank would not hold said J. W. Vanham for payment of said note?”

The answer of the jury was in the affirmative.

By way of explanation, the note sued on was given in renewal of the note dated July 12, 1932, and the Commercial Investment Company, plaintiff below, was a private corporation, organized without banking privileges to liquidate the affairs of the Commercial National Bank, and in taking over all the assets of the Bank came into possession of the note sued on herein.

In keeping with the verdict of the jury, judgment was rendered denying any recovery against J. W. Vanham; the Company was given judgment against the surviving wife and heirs of C. R. Graves for a foreclosure of the deed of trust lien on the real estate described therein.

The Commercial Investment Company has prosecuted this appeal complaining of the- failure of the trial court to give it a personal judgment against J. W. Van-ham.

Appellant’s first assignment of error is as follows :

“The Judgment of the Court in this case is contrary to the law and Plaintiff’s Motion for an instructed verdict should have been granted and Judgment rendered against the Appellee, J. W. Vanham,' as the said J. W. Vanham, as a matter of law, was not and could not be an accommodation maker on said note under the facts and circumstances developed in the trial of this case for in order that he might avail himself of the- defense of an accommodation maker under Article 5933, Section 29 of the Negotiable Instrument Act, he must not be the recipient of any consideration deemed valuable in law, his act in executing the note sued upon herein by Plaintiff must have been void of present or anticipated personal profit, gain or advantage. He being Cashier and Director of the Commercial National Bank at the time he signed the note sued upon by Plaintiff and the note of which the same was a renewal and, at said time being a stock holder in said Banking corporation, he was interested in the welfare of said Bank and to the extent of the stock owned by him in said Bank, he owned an interest in its property. ■ This interest was sufficient consideration to make him liable as principal debtor in the execution of said note although the proceeds were for the use and benefit of said Commercial National Bank, he having signed said note in order to enable the Bank to borrow money for the purpose of carrying on its business and for the purpose of enabling it to continue to conduct its business.”

It is alleged to be based upon assignment of error No. 2, which reads as follows:

“Under the law and the facts in this case, the said J. W. Vanham then being Cashier and also one of the larger stockholders in the Commercial National Bank of Uvalde, Texas, at the time he signed said notes in question, could under no circumstances have been an accommodation maker on said note for the reason that, as testified to by the said J. W. Vanham upon the trial of this case, he signed said notes in order to enable the Commercial National Bank of Uvalde, Texas, to obtain money from the Reconstruction Finance Corporation for the purpose of keeping said Bank going and protecting his interest therein and, in order for him to avail himself of the defense of an accommodation maker under Section 29 of the Negotiable Instruments Law, Article 5933, he must not be the recipient of any consideration deemed valuable in law. His act in executing the paper must be void •of any present or anticipated personal profit gathered or advantage.”

An examination of appellant’s motion for a new trial discloses that the .ground of error presented by this proposition and assignment of error was not presented to the trial court. We therefore cannot consider this proposition or the alleged assignment of error on which it is supposedly based. Amended rules for the Courts of Civil Appeals, No. 24, 99 S.W.2d XXIX; 3 Tex.Jur. 821, § 579; Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270: Texas & N. O. Ry. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160; Trapp v. Lampton, Tex.Civ.App., 112 S.W.2d 1112.

Neither is this ground of error based upon fundamental error. Refusal to give an instructed verdict does not present fundamental error. Moore v. Krenex, Tex.Com.App., 39 S.W.2d 828; Meuly v. Miley, Tex.Civ.App., 15 S.W.2d 654; Cox v. Rio Grande Valley Telephone Co., Tex.Civ.App., 13 S.W.2d 918; Warren v. Houston Oil Co., Tex.Com.App., 6 S.W. 2d 341; Ford & Damon v. Flewellen, Tex.Com.App., 276 S.W. 903.

Appellant’s second proposition reads as follows:

“As a Proposition of law, appellant urges that it was absolutely necessary, in order for the said J. W. Vanham to be released from liability upon the note sued on by Plaintiff by reason of the fact that he was an accommodation maker, that he must also have an agreement with the payee that he was not to be held liable on said note and Appellant’s Motion for an instructed verdict, which will be found set out on page 49 of the Transcript Record herein, which Motion is as follows, to-wit:

“ ‘Now comes Commercial Investment Company of Uvalde, Texas, Plaintiff in the above entitled and numbered cause and moves the Court to grant Plaintiff judgment in this cause for its debt against Joe W. Vanham, individually, and the Estate of C. R. Graves and foreclosure of its lien notwithstanding the verdict of the jury because the undisputed facts and the law in this case are with the Plaintiff and entitle Plaintiff to a judgment notwithstanding the verdict of the jury to the contrary.

“ ‘Wherefore, Plaintiff now prays the Court that it be granted judgment in this cause as prayed for in its Original Petition on file herein.’

“should have been granted. Also see Appellant’s Bill of Exception No. 1, pages 56-57 of the Transcript Record herein.”

It will .be noted that this proposition refers to appellant’s motion for an instructed vérdict, but copies in full a motion for judgment non obstante veredicto and follows this by a reference to a bill of exception on pages 56, 57 of the transcript. On these pages of the transcript is found a bill of exceptions complaining of the court’s action in overruling appellant’s motion for an instructed verdict- No ■ reference is made in this bill of exceptions to the motion for a new trial, which had been filed and overruled several days before this bill of exceptions was approved. The proposition states that it is based upon assignments of error 3 and 4. There is no assignment of error 3 or 4 in the brief, so such reference must be to paragraphs 3 and 4 of appellant’s motion for a new trial. Paragraphs 3 and 4 of the motion for a new trial read as follows:

“Because the Court erred in overruling Plaintiff’s Motion for an instructed verdict herein for the reason that the evidence is undisputed that no agreement was ever made with Commercial Investment Company, Plaintiff in this case of The Commercial National Bank of Uvalde, Texas, agreeing not to hold the Defendant, J. W. Vanham, liable on said note.

“Because there is not one scintilla of evidence in the record of this case to the effect that The Commercial National Bank of Uvalde, Texas, ever at any time agreed not to hold the said Defendant, J. W. Van-ham, liable upon said note.”

We therefore take it that by this assignment of error appellant intended to contend that there was no evidence to show that the bank agreed not to hold Vanham liable on said note, and that therefore the court should have granted appellant’s motion for an instructed verdict.

The evidence shows that the note dated July 12, 1932, was originally signed only by C. R. Graves and that Vanham signed it as an accommodation to the Bank, to enable the Bank to use the note as collateral in securing a loan from the Reconstruction Finance Corporation, and that it was understood there was to be no liability as between Vanham and the Bank. The note sued on, dated January 12, 1933, was nothing more than a renewal of the obligation contained in the note of July 12, 1932. There is evidence supporting the finding of the jury that Vanham was an accommodation endorser of the note for the sole purpose of lending his credit to the payee of the note. Under such circumstances there would be an implied promise as between the original parties not to hold the accommodation endorser. Appellant is the successor of the original payee in the note. It has the same stockholders and the same officers as the original payee, and took over all the assets of the payee. Appellant took the note after it was past due and with the knowledge of Vanham’⅛ claim that he was an accommodation maker.

In 8 C.J. p. 259, it is stated: “The party for whose benefit accommodation paper has been made acquires no rights against the accommodation party who may set up the want of consideration as a defense to an action by the accommodated party, since as between them there is no consideration, a fact which is always a defense to a suit on negotiable paper between the immediate parties. * * * ”

The trial court did not err in overruling appellant’s motion for an instructed verdict.

Appellant’s third proposition does not show it to be based upon any assignment of error contained in the motion for a new trial or otherwise; it is multifarious and is not followed by a statement such as is required by Court of Civil Appeals Rule 31, 142 S.W. xiii. See, also, Union Mortgage Co. v. McDonald, Tex.Civ.App., 30 S.W.2d 506; Schaff v. Fancher, Tex.Civ.App., 215 S.W. 861; Pate v. Gallup, Tex.Civ.App., 195 S.W. 1151; Irving v. Texas & Pac. Ry. Co., Tex.Civ.App., 157 S.W. 752; Western Union Telegraph Co. v. Golden, Tex.Civ.App., 201 S. W. 1080.

This court is without authority to consider an error, unless the same be fundamental or raised by a proper assignment of error presented in the brief. Greenwall v. Ligon, Tex.Com.App., 14 S.W.2d 829; Clonts v. Johnson, 116 Tex.489, 294 S.W. 844; Devlin v. Heid Bros., Inc., Tex.Civ. App., 21 S.W.2d 746.

The judgment is affirmed.