Abney v. Citizens' Nat. Bank of Hillsboro , 1912 Tex. App. LEXIS 1331 ( 1912 )

TALBOT, J.

This suit was brought by the Citizens’ National Bank of Hillsboro, Tex., in the county court of Hill county, against W. O. Whitlock as maker and J. D. Abney as indorser of a promissory note described in' plaintiff’s petition. The plaintiff alleged, and the facts developed, that the note was signed by Whitlock and was payable to the order of “J. D. Abney, executor,” and was indorsed as follows: “J. D. Abney, executor.” The defendant “Whitlock filed no answer, and judgment by default was taken against him. Tbe defendant, Abney, pleaded a general demurrer, general denial, and specially that said note was not executed to him in his personal or individual capacity, if the same was executed and delivered to him at all, and that it was not sold, transferred, or indorsed by him in his individual capacity, but that throughout the transactions he was acting in his fiduciary capacity as executor of the estate of Mrs. N. T. Abney, and this fact was known to and recognized by plaintiff; that there was no intention 'on the part of either the plaintiff or of this defendant that this defendant should be bound thereby in his personal or individual capacity, and that, if such is the legal effect of such transactions, then this defendant and plaintiff were led to act in such a way and do such things as would produce that effect through a mutual mistake of fact and law, and that it was the real agreement and intention of these parties that this defendant was to be bound, if bound at all, by the transactions only in his fiduciary, and representative capacity; that prior to the execution of the note sued upon the defendant Whitlock was indebted to the plaintiff in some amount and desired to borrow and secure an additional amount of money from plaintiff, but he could not satisfy said indebtedness or secure such additional money from plaintiff without furnishing some character of security therefor; that said “Whitlock was a tenant upon land belonging to the estate of which this defendant was executor, and had said land rented for the year of 1911, and that by reason thereof, and the terms of the rental contract, the landlord’s lien existed against the crops that might be cultivated and raised upon said land during said year in favor of the estate of which this defendant was and is executor to secure the payment of advances that might be made by him of money or supplies for working said land, which facts were know to plaintiff prior to and at the time of the transactions in question; that for the purpose of giving plaintiff a first lien upon such crops, etc., to secure such existing indebtedness due by said Whit-lock, and such proposed additional indebtedness, and for the purpose of subjecting said landlord’s lien to the mortgage lien in favor of plaintiff said note was executed by said Whitlock to this defendant “as executor,” if at all, and said mortgage was likewise so executed, if at all, and the same was transferred by this defendant “as executor” for such purpose and for no other purpose, all of which was known to and consented to and acquiesced in by plaintiff at the time, and it was expressly or impliedly agreed by and between plaintiff and this defendant that this defendant was not to be liable or bound for the payment of said note in his personal or individual capacity, or any capacity at all, and that the plaintiff would look alone to its mortgage security ■against said crops and other property mentioned in said mortgage and to said Whit-lock for the payment of said indebtedness; that defendant received no part of the consideration of said note, and received no consideration at all by reason of such transactions, and the execution and transfer of said note, etc., and that plaintiff parted with no consideration at all by reason of the acts and conduct of this defendant in the premises, but that this defendant’s connection with such transaction was simply that of an accommodation party, and that only in his fiduciary capacity, all of which was known to, recognized by, and acquiesced in by plaintiff, and this defendant says that he did not intend to become personally liable by reason of such transactions, and that he would not .have had anything to do with the transaction but for the understanding aforesaid, implied or expressed, and the fact that plaintiff by its words and conduct in the premises led this defendant to believe that the understanding and intention of the parties, and the effect of their acts, was as aforesaid; wherefore this defendant says that he is not liable upon said note, and, in the alternative, he says that, if he is technically liable, he has been discharged from such liability, and plaintiff is estopped and precluded from recovering against him, as prayed, by reason of the facts stated above, and there was and is a failure of consideration so far as this defendant is concerned by reason of the facts stated above. Abney also prayed for judgment over against Whitlock. The cause was tried before a jury, and the following verdict was rendered therein:' “We, the jury, find for the plaintiff as prayed against the defendants in the sum of three hundred twenty-three and n/ioo dollars ($323.11) with 10 per cent, interest from maturity and 10 per cent., additional of the principal and interest as attorney’s fees. We further find for the defendant J. D. Abney against the defendant W. O. "Whitlock for the said sum of $323.11, with 10 per cent, interest from maturity and 10 per cent, additional on principal and interest as attorney’s fees. Together with the foreclosure of said mortgage.” Defendant, Abney, duly filed and presented his motion for a new trial, which was by the court overruled, and he appealed.

[1] We deem it unnecessary to copy and discuss categorically or in detail appellant’s assignments of error. We have carefully examined all of them, and believe none point out reversible error. If the charge of the court complained of in the first assignment of error was defective, and not satisfactory to appellant, because it submitted only one of the issues involved in the case, still it was correct as far as it went, and the error, if any, was one of omission, and should have been cured by a charge prepared and requested by appellant covering the issues claimed to Have been omitted, which does not appear to have been done.

[2,' 3] However, the issues claimed to have been raised by the pleadings and evidence and ignored by the court’s charge, so far as they appear by the propositions propounded under the assignments of error, and none other can be considered, are whether or not the indorsement of the note sued on by Ab-ney was made simply for the purpose of transferring the title to and right of action on said note to the plaintiff without himself incurring any personal liability thereby, and whether or not Abney’s said indorsement was made for the purpose of waiving his landlord’s lien on the defendant Whitlock’s crops in favor of said note and mortgage given to secure the same, without rendering the said Abney liable either individually or in his fiduciary capacity; and, as to the first of these questions, it may be said that it was no.t raised by the pleadings, and, as to the second, it was not raised or was - eliminated by the evidence. The only witnesses who testified in relation to the waiver of the landlord’s lien were appellant, Abney, and the defendant Whitlock. Both of these witnesses testified to the effect that Abney declined to waive his landlord’s lien, but agreed to and did indorse the note as shown, and delivered the same, together with the mortgage, to the appellee. 1-Ie testified: “He (Bowman) wrote up some kind of an instrument which he said was a waiver of the lien. • I declined to sign it.” In this state of the pleadings and evidence neither of the questions under consideration should have been submitted to the jury. The question whether or not Abney indorsed the note in the manner alleged by the plaintiff was submitted in the charge complained of by appellant.

[4-6] Again, whether or not Abney, in indorsing the note, intended to be bound only in his fiduciary capacity, was not, in our ■opinion, an issue raised by the evidence. The mere adding o.f the word “executor” after his- signature was not, we believe, sufficient to raise such an issue. And the evidence does not disclose what estate, if any, Abney ^vas representing. He alleged that he was executor of the estate of Mrs. N. T. Abney, but he does not say that he made that fact known to appellee’s agent, Bowman, at the time he indorsed and delivered to him the note. He testified that he was •executor of both his father’s and mother’s estates; but which one he was acting for, if either, in indorsing the note, he did not state. He testified that he did not tell Bowman, the appellee’s agent, at the time he indorsed the note that he did not intend to be bound by the indorsement, or that he intended to be bound as executor only. He did state: “I do not know exactly which estate I acted for in indorsing this note. That would, I suppose, be a legal question.” The defendant Whitlock testified, in effect, that, at the time of Abney’s indorsement of the note and its delivery to appellee, Abney said nothing about not being bound on his indorsement, or that he was bound only as executor. Whitlock further testified that Abney said he preferred not to waive the landlord’s lien, but that he would take the note payable to himself and mortgage on his, Whit-lock’s; crop and stock, and would indorse the note to the bank (appellee), “if Mr. Bowman would let me have the money on that; that Mr. Bowman said that would suit him better or something to that effect.” At all events, however, we think that appellee, upon the introduction of the note in question, made out a prima facie case against Abney, and that, regardless of the pleadings and the evidence shown by the record before us, was entitled to the judgment rendered.. The note sued on being payable to appellant, “J. D. Abney, executor,” and, being so indorsed, Abney was liable on the same personally. The word, “executor,” appearing after his name in the note and in the indorsement, must be treated as mere desefiptio personae, and rejected as surplusage. The law on the subject is expressed by Mr. Daniel, in his excellent work on Negotiable Instruments, § 262, as follows: “An administrator or executor .cannot bind the decedent’s estate by any negotiable instrument. He can only bind himself. If he make, accept, or indorse a negotiable instrument, he will bind himself personally, even if he adds to his own name the designation of his office as personal representative. Thus if he signs himself A. B., executor of (or administrator of O. D.), the representative terms will be rejected as surplusage.” We think that inasmuch as there was no issue of fraud involved in the transaction, and as Abney was not misled by any one, parol evidence was inadmissible to qualify his indorsement, and show that, notwithstanding the personal liability created by reason of his indorsement, he, in fact, was not so liable. Nor was parol evidence admissible to show, even if such a defense was pleaded, that Abney indorsed the note simply to transfer the title and right of action thereon to the Citizens’ National Bank, without incurring any personal liability for the payment of the note. No such purpose is evidenced by the indorsement itself, and the rule in this state is that, “in the absence of restrictive language, an indorsement involves but one contract, and does not consist of one contract of transfer and another of assumption of contingent liability.” Behrens v. Kirkgard, 143 S. W. 698. If a note is executed by the personal representative of an estate for the debt of his testator, he will be personally bound to pay it, even in the hands of the original holder, unless his personal liability is excluded by language restricting his promise to pay out of the assets of the estate, “for assets in his hands constitute a sufficient consideration for a promise by him to pay the testator’s debt, and, the promise being in writing, no prooí of consideration is necessary.” This is true, even if the note is nonnegotiable. 1 Daniel on Negotiable Instruments, § 263; Gregory, Adm’r, v. Leigh, 33 Tex. 813; McKinney v. Peters, Dall. Dig. 545; Morrison v. Hodges, 25 Tex. Supp. 176.

[7] There is another principle applicable, it occurs to us. It is well settled that if an agent sign a note with his own name as such, and discloses no principal, he is personally bound. In treating of this subject Mr. Daniel, § 305, says: “The party so signing must have intended to bind somebody upon the instrument, and, no promisor but himself therein appearing, it must be construed as his note, or as a nullity. And, though he term himself ‘agent,” such suffix to his name will be regarded as' a mere descriptio person® or as an earmark of the transaction and may be regarded as surplus-age.” This principle, Mr. Daniel says, applies, although it could be proved that the payee knew of the agency when the note was made, and it was understood that the principal, and not the agent, should be bound, for such evidence would vary the terms of the written note. Warren v. Harrold, 92 Tex. 417, 49 S. W. 364; Williams v. Robbins, 16 Gray (Mass.) 77, 77 Am. Dec. 396; Story on Promissory Notes, § 63; 7 Cyc. pp. 546, 563; 8 Cyc. p. 269. Mr. Story cited above says, in effect, that trustees, guardians, executors, and administrators are generally held personally liable on promissory notes, because in their representative capacity they have no authority to bind the estate for which they act, and hence the law, to give validity to their acts, must hold them personally. Many other authorities might be cited and quoted in support of the doctrine announced, but we deem it unnecessary to pursue the subject further. The authorities cited by appellant are distinguishable in the facts from the case at bar, and are therefore not applicable.

Neither the argument of counsel nor the alleged misconduct of the jury complained of, even if properly presented, would warrant us in reversing the ease. If it be admitted that the argument was improper, it did not so far exceed the bounds of legitimate discussion as to require a reversal of the case, and the question presented as to the misconduct of the jury was made an issue in the trial court and determined against appellant, and we-see no good reason to disturb the action taken in respect thereto. Indeed, we are of opinion that the evidence was insufficient to show any such misconduct on the part of the jury as justified the setting aside of their verdict.

Upon the whole case we think no other proper verdict and judgment could have been rendered in this case than were rendered. Said judgment will therefore be affirmed.

Affirmed.