Harlan v. First State Bank of Sterling City , 1925 Tex. App. LEXIS 198 ( 1925 )

If appellant is entitled to complain of the judgment, it is not on the ground first presented in his brief, to wit, "that the undisputed evidence showed that the note was payable in Nueces county"; for, plainly, as appears from the statement above, the evidence did not undisputedly show that.

The other contention presented in said brief is that the judgment is wrong because it appeared from the testimony (appellant asserts) that the note sued upon, as written by him, and as he intended it to be, was payable in said Nueces county.

The contention, if sustainable in any view of the record, must be on the view, not that the testimony would have supported a finding that the note was payable in Nueces county, but that it conclusively appeared therefrom, that when appellant wrote the words "Dallas, Tex.," under the words "Bishop, Texas," in the note, he did not thereby intend to specify Dallas as the place where the note was to be payable; and, second, that the pen marks across the words "the First State Bank of Bishop, Bishop, Texas," were wrongfully placed there after appellant executed the note and delivered it to Ben Harlan.

We do not think either of those matters so appeared, notwithstanding the testimony of appellant as a witness (specified in the statement above) was not disputed in the testimony of any other witness. For, in weighing appellant's testimony in his own behalf, the trial court had a right to consider the reasonableness or unreasonableness thereof and his (appellant's) interest in the suit as a party thereto, and to conclude that the note was not altered after it left his hands, and that the words "Dallas, Tex.," as written therein by appellant, were intended at the time they were written to indicate the place where the note was to be payable. Mills v. Mills (Tex.Com.App.) 228 S.W. 919; Tube Co. v. Refining Co. (Tex.Civ.App.) 264 S.W. 108; Chapman v. Bullock (Tex.Civ.App.)254 S.W. 232; Wolters v. Ins. Co. (Tex.Civ.App.) 255 S.W. 666.

If the conclusion reached is correct, the judgment, of course, ought to be affirmed, without reference to the disposition which should be made of the appeal if it conclusively appeared that the note had been altered as claimed by appellant after he delivered it to the payee thereof. Therefore we will not undertake to determine whether, in that event, the appeal ought to be otherwise disposed of or not, but content ourselves with the suggestion that it probably ought not to be, because it appeared that appellee was a holder of the note "in due course" and was not a party to the alteration thereof. In that state of the case appellee, even if the alteration was a material one, would have had a right to have the note enforced "according to its original tenor." Article 6001-124, Vernon's Ann.Civ. Statutes 1922. Enforcing it that way, and applying the rules applicable where an ambiguous contract is partly printed and partly in writing (13 C.J. 536), and where it is written by the party against whom its enforcement is sought (13 C.J. 544, 546), the trial court probably would have had a right to construe the note as payable on its face in Dallas county. If the note might have been so construed, the fact that appellant intended to make it payable in Nueces county would not have affected appellee's right to have it enforced according to its legal effect.

The judgment is affirmed.