Brannan v. First State Bank of Comanche , 1919 Tex. App. LEXIS 609 ( 1919 )

This is an action by defendant in error against W. C. Weatherby, D. T. Coker, and A. O. Brannan to recover upon a promissory note payable to plaintiff, alleged to have been executed by the defendants. Weatherby did not answer. Coker pleaded non est factum, and Brannan, among other things, pleaded, in substance, that he signed the note in suit as surety for the defendant Weatherby, upon the express condition and understanding that said note would be signed also by Coker; that said note was executed to the plaintiff in renewal and extension of an indebtedness owing by Weatherby, the principal on said note, and that the plaintiff paid no consideration whatever for said note and parted with nothing of value in accepting the same; that D. T. Coker did not I sign said note, but that his signature thereon was a forgery, and that Weatherby unlawfully and fraudulently delivered said note to plaintiff without authority in violation of said agreement; that said note was not executed by defendant, but was only conditionally delivered. There was a trial before the court without a jury. The cause was dismissed as to defendant Weatherby, and a judgment was rendered in favor of defendant Coker upon his plea of non est factum, and against Brannan for the amount of the note.

The court did not file any findings of fact and conclusions of law. In the judgment there is a general finding "that the law and the facts are with the plaintiff as against the defendant A. O. Brannan."

Opinion. Plaintiff in error presents only one assignment which he submits as a proposition. It reads:

"The judgment of the court is contrary to the law and evidence in that the evidence conclusively shows that A. O. Brannan signed the said note upon the condition that said note was not to be delivered and become effective except upon condition that D. T. Coker should also sign said note as security, and that the said D. T. Coker did not sign said note as security, and that the plaintiff did not part with anything of value and was not an innocent holder for value, in that said note was given as a renewal note to the same payee, and not an innocent holder for value, and that said A. O. Brannan not being in any way liable for the payment of the first note."

The defense that the note was signed upon the condition that it was not to be delivered and become effective unless Coker should also sign the same is supported by the testimony of Brannan alone. There is no supporting corroborating evidence whatever. The court trying this case was the judge of the credibility of the witnesses and the weight to be attached to this testimony. Brannan was a party to the suit and vitally interested. The court was not obliged to accept his statement as true simply because he was not contradicted by some other witness on the stand. It was within the province of the court to disbelieve his testimony. Burleson v. Tinnin, 100 S.W. 350; Coats v. Elliott, 23 Tex. 606; Cheatham v. Riddle, 12 Tex. 112; Railway Co. v. Johnson,23 Tex. Civ. App. 160, 55 S.W. 772. In the absence of a specific finding upon the issue, it must be presumed that the issue of fact presented by Brannan's defense was found against him by the court. With this issue resolved against him, judgment was properly rendered for the plaintiff in the suit,

Affirmed.