Jasper State Bank v. Townsend

WALKER, Chief Justice

(dissenting).

I quote as follows from appellee’s motion on rehearing:

“Appellee attempted to,plead and prove that a fraud was perpetrated upon him in procuring his signature to the last renewal' note for the sole purpose of establishing that he incurred no liability upon the note or by signing the same. And, in this connection the attention of the court is called to the fact that it is plead that in each instance of a renewal and particularly with reference to the last renewal it was represented to appel-lee by the officers of the bank “that the estate of .Rhodie Powell was still liable for the payment of said note, that all things necessary and requisite to the fixing of such liability had been done and performed, and that such liability had been continued and brought forward and would be carried forward, that plaintiff was merely surety on said note and that the'estate of said Rhodie Powell would be subjected to the payment thereof -before recourse was had against plaintiff or his property.”

On the issue raised by this plea, my brethren say:

“We think appellee’s contention is without force. If in fact Mrs. Rhodie Powell agreed with appellee to hold him harmless that was an agreement or contract between Mrs. Rhodie Powell and appellee to which the bank was not a party, and any action that appellee could or might assert to enforce such agreement could not affect the bank and it would not be either a necessary or proper party to such action. Moreover, we think that if the representative of the bank at the time appellee signed the note in question as surety, told appellee that the estate of Rhodie Powell was still liable on the note, it was a statement of the opinion of the person making the statement as to a matter of law rather »than of fact upon which appellee had no right to rely, and so was not fraud such as would invoke the venue statute.”

I dissent from the conclusion of my brethren on the issue raised by appellee’s plea quoted above, that “it was a statement of the opinion of the person making the statement as to a matter of law rather than a fact upon which appellee had no right to rely, and so was not fraud such as would invoke the venue statute.” In my judgment appellee raised the issue of fraud as a defense against appellant’s cause of action pleaded against him. While this appeal presents only a question of venue, my brethren have disposed of this issue as one of substantive law by which the trial court will be bound upon another trial.