Blankenbeckler v. Kuykendall , 256 S.W. 323 ( 1923 )

HIGGINS, ,7.

This suit was brought by John D. and Henry Seale against W. S. Anglin, P. A. Blankenbeekler, and O. I. Kuykendall. The litigation arose over a note in the principal sum of $800, executed by Anglin to the order of Blankenbeekler, and, by the latter, indorsed to Kuykendall, who in turn indorsed the same to the plaintiffs. The note recites that it was secured by pledge of a Mitchell automobile. It was in fact secured by a mortgage upon such automobile, but the same was subordinate to a prior duly registered mortgage given by Anglin to the American National Bank. Anglin defaulted in the payment of the note to the bank, and the bank foreclosed its mortgage. The security of the automobile for the note in favor ■ of Blankenbeekler was thereby lost.

tlpon trial without a jury -judgment was rendered as follows':

In favor of the plaintiffs against Anglin and ¿uykendall for $800, with 6 per cent, interest from March 1, 1920; in favor of Kuykendall against Blankenbeekler for a like amount, with direction that execution issue for such amount as Kuykendall might be required to pay the plaintiffs upon their judgment; in favor of Blankenbeekler against Anglin for a like amount, with direction that execution issue for such amount as Blanken-beckler might be required to pay Kuykendall upon the latter’s judgment.

Blankenbeekler alone appeals, giving a su-persedeas bond payable to Kuykendall, and reciting that the appeal is taken from the judgment rendered in favor of Kuykendall against Blankenbeekler.

None of the other parties are mentioned in the bond.

A number of assignments and propositions relate solely to the suit by the plaintiff Seale, but these matters present no error in view of the fact that they recovered no judgment against appellant; furthermore, the merits of the judgment in favor of the plaintiffs against Kuykendall and Anglin are not presented by this appeal, as they are not named as obligees in the supersedeas bond and the recitals in the bond show that Blankenbeckler has not even attempted to appeal from and present for review that portion of the judgment in favor of the plaintiffs against Kuykendall and Anglin. In this connection, see Slaughter v. Texas Life Insurance Co. (Tex. Civ. App.) 211 S. W. 350.

The first assignment complains of the overruling of special exception No. 2, by appellant, to the plaintiff’s petition and the cross-action of Kuykendall. The exception mentioned was not directed against Kuyken-dall’s cross-action, but was leveled solely against the plaintiff's petition. There is thus no basis for the assignment so far as it concerns the cross-action. And so- far as concerns the plaintiff’s petition the matter presents no error of which this appellant can complain for the reason indicated above.

By the second and third assignments it is asserted the court erred in admitting certain evidence. The testimony was irrelevant-to the controlling issues in the case and harmless. Furthermore, the trial was before the court and it will be presumed that the court did not consider it.

Under the fourth, fifth, sixth, and tenth assignments the proposition is made that “findings of fact can be founded only on competent evidence,” which, in the abstract, is correct; but there is ample competent evidence to support the judgment and material findings of the court.

The cross-action of Kuykendall was for rescission of his purchase of Anglin’s note upon the ground that its purchase had been induced by the false and fraudulent representation of appellant that it was secured by a first lien upon the automobile described in the note.

The third proposition, under the remaining assignments, is that—

“A judgment based upon fraudulent representations can be rendered only upon pleadings and proof alleging and proving the value of the property received and parted with by the person defrauded.”

The rule contended for and authorities cited would be applicable if the suit constituted an affirmance of the purchase and for the damages sustained by the fraud. But such is not its nature. It is a disaffirmance and suit for rescission, and the measure of the appellee’s recovery was what he paid for the note. Parks v. Lancaster (Tex. Civ. App.) 38 S. W. 263.

Affirmed.