First State Bank of Otto v. Cohn , 247 S.W. 923 ( 1922 )

KEX, C. J.

A. B. Cohn, as plaintiff, sued the First State Bank of Otto, as defendant, and sought to recover damages for the breach of a verbal contract, by which it was-alleged the defendant agreed to lend to the plaintiff sufficient money to buy 100 head or-cattle, hold them until they were in proper condition, and then ship them to and sell them on the Fprt Worth market. Plaintiff alleged that, if the defendant had complied with its contract, he would have made a profit of $2,500. The defendant’s answer contained a general demurrer, several special exceptions, a general denial, and a special answer, the particulars of which need not be here stated. There was a verdict and judgment for the plaintiff for $500, and the defendant hás appealed.

Wthile we are inclined to the opinion that the trial court should have sustained some of the special exceptions urged against the plaintiff’s petition, inasmuch as we have concluded that the case should be reversed and rendered for the defendant, upon another 'ground, we deem it unnecessary to discuss the questions involved in the exceptions referred to.

The plaintiff’s case rested mainly upon his own testimony, which tended to show that in March, 1918, he made a verbal contract with the defendant, acting through its cashier, by the terms of which the bank was to furnish him money for the purpose of buying and preparing for the market 100 head of cattle, and, after furnishing $480, refused to furnish any more; but the undisputed testimony shows, and plaintiff so testified, that on March 6, 1918, and before the contract was consummated and any money placed to his credit on the books of the bank, he executed and delivered to the bank a note for $1,000, payable on demand, and agreed that, if any other money was furnished to him, for the purpose of purchasing cattle, he would execute a similar note or notes. It was neither alleged nor proved that the execution of the note referred to, and promise on the part of the plaintiff to execute other notes, if further sums should be placed to his credit, was the result of any fraud or fnis-take. In a few days after the execution of the note, the plaintiff purchased several head of cattle and drew checks on the defendant, amounting, in the aggregate, to $480, which were paid by the bank. Soon after the payment of the last cheek the cashier, acting for the bank, told the plaintiff not to give any more checks on the bank, and that the loan would be called in, and demanded payment of the $480, which the bank had paid out on checks drawn by. the plaintiff. Thereupon the plaintiff sold the cattle which he had bought, and paid defendant out of the proceeds of such sale the $480 demanded. The plaintiff put the pote in evidence, and there is an indorsement on it, “Canceled 3/6/18 (A. B. O.).”

Upon these undisputed facts, we hold that the plaintiff has no cause of action against the defendant for its refusal to furnish him money to carry out his contemplated speculation, by buying and selling cattle. If, when the defendant demanded of the plaintiff the execution of a demand note before it would furnish him any money, the latter had refused to execute such note, and sued the bank for a breach of its verbal contract, he might have sustained his cause of action. Instead of pursuing that course, he consented to the demand of the bank, and executed tibe note, which became a written contract between the parties; therefore the $1,000 which the bank placed to the credit of the plaintiff was payable on demand, and, although the verbal contract may have been otherwise, the bank had the option, according to the plain terms of the written contract, to terminate the loan at any time it saw proper, and to refuse to furnish to the plaintiff any more money.

The gist of the plaintiff’s cause of action is that the defendant breached an oral contract to furnish him money for an indefinite period of time with which to purchase at least 100 head of cattle. That contention, although it may be supported by the plaintiff’s testimony, is in direct conflict with the.plain terms of the written contract, which was embodied in a note signed by the plaintiff; and the rule is well settled that, when parties have reduced their contracts to writing, the latter will control, and cannot be changed in any material part by testimony showing that the Verbal agreement was different from that contained in the written instrument, unless it is shown that the latter was procured by fraud, or executed by mistake.

There being no dispute about the facts referred to, the court should have instructed a verdict for the defendant; and therefore judgment is reversed, and judgment here rendered to the effect that the plaintiff in the court below, who is appellee in this court, take nothing, and that all the costs of both courts be taxed against him.

Reversed and rendered.