First Nat. Bank of Bowie v. Bell , 88 S.W.2d 119 ( 1935 )

Concurring in the disposition made of this cause, the majority respectfully submit the following observations:

The $5,000 note sued upon is set out in the petition in paragraph six thereof and the allegations are made that J. H. Bell executed the note and G. B. Bell indorsed it. That J. H. Bell executed a collateral agreement, made a part of the note, whereby six vendor's lien notes, each for $1,000, signed by G. B. Bell, were put up as security for the payment of the $5,000 note.

The note specifically provides that the makers and indorsers waive presentment for payment, protest, and notice of protest and of nonpayment.

As a defense to appellant's suit on such note and collateral security, J. H. Bell alleged: (1) There was no consideration for his executing same, in that such note was given in renewal and extension of an original note and debt theretofore executed and owing by G. B. Bell; (2) that he was merely a surety on the note, and this fact was understood and agreed; (3) that the original payee, City National Bank, through its then president, agreed with him that the note would not become a binding and subsisting obligation unless and until G. B. Bell signed same as principal; (4) that such was not done, and he prays to be released from all obligations thereunder. He further pleaded that the collateral security put up by him were not vendor's lien notes growing out of a bona fide transaction, but that the sale, out of which they grew, was a pretended, or conditional, sale.

G. B. Bell answered, adopting the allegations of J. H. Bell and asserting the truthfulness thereof.

Were we favored with a statement of facts, our conclusions might be farther-reaching than we feel warranted in going, in the absence of such record.

The trial court rendered judgment releasing G. B. Bell and J. H. Bell on the $5,000 note, canceling the collateral security notes and removing the vendor's lien which clouded J. H. Bell's title to the lands described.

Appellant has appealed only from that part of the judgment dealing with the said $5,000 note and its collateral, and the Bells' obligation thereunder.

The trial court predicates his judgment on certain jury findings: (1) That it was agreed between G. B. and J. H. Bell and the original payee, City National Bank, that the deed and vendor's lien notes should be of no force and effect unless the lands were sold to one Richardson; (2) that it was agreed between J. H. Bell and said payee bank that unless G. B. Bell signed the $5,000 note as the maker, it would not be a binding obligation; (3) that J. H. Bell did not know that the collateral agreement, signed by him and attached to the $5,000 note, pledged the first six of the vendor's lien notes as collateral security for such note; (4) that J. H. Bell did not indorse his name on the back of the vendor's lien notes given as collateral security; (5) that on October 6, 1930, when the directors of City National Bank executed an instrument to the appellant bank, under which the last-mentioned bank claims as assignee of the notes sued upon, the appellant Bank did not have knowledge of any agreement between the Bells and City National Bank that the deed and vendor's lien notes should be of no force and effect unless the lands were sold to one Richardson.

No statement of facts being before us, we are in no position to say what was testified to by J. H. Bell and G. B. Bell, but if the $5,000 note was delivered by the directors of the defunct City National Bank to the appellant on or about October 6, 1930, the appellant took title to such note before maturity, for value, regardless of whether there was a written contract of assignment and sale or a mere delivery.

The only question pertinent to that transaction is, Did appellant know of the facts contended for by the Bells in the last issue above mentioned at the time the note and its collateral were delivered to it? The jury expressly found that it had no such knowledge. If it had none, the defense urged is without avail. The answer to the first issue above mentioned then becomes immaterial.

If the appellant did not know that there was such an agreement as that inquired about in the second issue mentioned above, before it acquired the note, such issue becomes immaterial.

Furthermore, J. H. Bell signed the note in the face, as a maker, and he is not concerned with whether or not G. B. Bell signed as a maker, or as a surety, under the facts here. His liability is just as securely fixed, and his recourse is a recovery over against G. B. Bell, who alleges that he is in fact the principal, as does J. H. Bell.

J. H. Bell executed the collateral agreement and he cannot be heard to impeach its plain unambiguous terms by merely saying he did not know that the vendor's lien notes described in the agreement were pledged to secure the payment of the $5,000 note.

The finding on the third issue above mentioned is a nullity, under the pleadings and the record before us. The finding on the fourth issue mentioned above is likewise a nullity. The written pledge agreement made by J. H. Bell put these vendor's lien notes up as security for the $5,000 note and the mere fact that J. H. Bell did not endorse his name on the back of the collateral notes means nothing.

It cannot be successfully said that there is, from the record, no consideration moving to J. H. Bell for his making or indorsing the $5,000 note, if it is in renewal of a prior note and debt owed by G. B. Bell, all of which J. H. Bell alleges to be true.

If G. B. Bell's prior debt was past due and he wanted it extended and the owner granted the renewal and extension in part because of J. H. Bell's signature as a maker, or indorser, sufficient consideration passed to J. H. Bell, under such circumstances. Kennedy v. McCauley (Tex. Civ. App.) 248 S.W. 423, and cases cited.

The majority concur in the opinion reversing the judgment of the trial court, in which J. H. Bell and G. B. Bell are released from all liability on such note, and canceling the collateral notes and vendor's lien executed to secure them, and in remanding this cause for a trial on such issues. If the testimony raises no further issues than those presented, and the jury finds as was done in the former trial, the appellant will be entitled to a judgment against both Bells on the note and for title to the collateral security put up by J. H. Bell.

At all events, appellant was entitled to a judgment against G. B. Bell regardless of the manner in which he signed the note. He pleads that it is his obligation and he has signed it, and no qualification attached by him to his signature attempting to make of himself a mere surety can serve to release him from his liability. He cannot take advantage of his own wrongdoing.