Helmke v. Prasifka

Appellee sued appellant to recover upon a promissory note executed by appellant for the sum of $2,100, interest and attorneys' fees. Appellant admitted the execution of the note, but resisted payment on the ground of the failure of consideration. He also defended upon the ground that the note was never delivered absolutely, but with the understanding and agreement by appellee that he would not collect, or attempt to collect, said note unless a certain $6,000 note that had been executed to appellant by one John Broeg and Hugo Kolterman was paid when due; that said note of $6,000 was never paid by the makers thereof, and hence the consideration failed.

Upon a hearing of the facts, the court instructed the jury to return a verdict for appellee, which was accordingly done, and a judgment was rendered against appellant for appellee. The facts are substantially as stated by the witness Albert Arend, who resides at Seguin, and who was engaged in the farm loan business, as follows:

"That he (the witness) was acquainted with the appellant and appellee. That he understood appellee was engaged by appellant to negotiate a sale of the land in question, appellee being in the real estate business and residing at Robstown, in Nueces county. That the witness was present when Helmke executed a note to appellee, Prasifka, for $2,100.00, the note being written by witness for appellant and appellee. In other words, he was acting as secretary to each of the parties. The note for $2,100.00 to become due at the same date the $6,000.00 note in question was to mature. The deed to Broeg and Koltermann was delivered in the office of the witness Arend. That appellee, the agent of appellant, was paid the aggregate sum of $1,000.00 and the note for $2,100.00 was executed. That appellee admitted in the presence of witness that the note for $2,100.00 was not collectible unless Broeg and Koltermann paid the $6,000.00 note. Prasifka, appellee, said: ``I admit that you don't owe me the whole commission at the present time and not until that $6,000.00 note is paid on the first of November.'

"The note for $6,000.00 was payable November 1st, 1925, at the same time the $2,100.00 note was made payable. Mr. Helmke stated to appellee, Prasifka, when he delivered the note for $2,100.00 to him, that he would pay that note the moment that Broeg and Koltermann would pay the $6,000.00 note. That was the condition that that note was given under. When the note was delivered Mr. Helmke said: ``The moment Broeg and Koltermann pay me that $6,000.00 note, then I will pay this $2,100 note,' and Prasifka admitted this was acceptable. He said ``That is all right.' Appellee, Prasifka, further said: ``Of course, if they (Broeg and Koltermann) don't pay that note (the $6,000.00 note), you don't have to pay the $2,100.00 note.' That was the condition the note was delivered on. If the $6,000.00 note was not paid by them, then this note was not payable."

Broeg and Koltermann never paid the note, and the land was reconveyed to appellant.

There is no necessity for discussing the facts in detail. The real question upon which the defense is made and the basis of this suit is that there was no delivery of the note with the intent of making it a binding contractual obligation, except in the event of the payment of the $6,000 note executed by Broeg and Koltermann, which never occurred.

There was no written stipulation that there was any condition that the payment of the note for the commission was dependent upon the payment of the $6,000 note; in other words, the note was assignable, and a purchaser would take it in all innocence. The agreement was wholly in parol. We do not think under the facts of this case that it was delivered in such manner as not to become binding and effective. We think it was delivered in a manner in which it became binding and effective and not affected by the provisions of article 5932, § 16, R.S. 1925. As a matter of fact, it was delivered under the terms of an agreement as would have made the note payable or defeated its payment on a contingency which might thereafter happen. In the case of Rector v. Evans (Tex.Com.App.) 288 S.W. 826, it was alleged that, when the note therein sued on was executed and delivered, it was agreed that the same would not be binding upon the maker until such time as the payee had sued upon and recovered a judgment against other parties signing said note. Judge Short, of the Commission of Appeals, in discussing this statute, held it inapplicable, and "that the agreement did not relate to the delivery of the note but rather to its payment or nonpayment." He further held that the contract "was in direct violation of the legal rule that, in the absence of fraud, accident, or mistake, oral testimony is not admissible to contradict the terms of a written instrument." In the case of Chalk v. Daggett (Tex.Com.App.) 257 S.W. 228, the maker of the note pleaded at the time each of the notes were given the payee entered into a parol contract whereby certain previous partnership affairs between them were to be settled by an accounting, the amounts found to be due the maker to be credited on the notes, and the notes were not to be collected until the accounting was had. Such an agreement was upheld. See, also, Key v. Hickman (Tex.Civ.App.) 149 S.W.

The evidence shows that appellee had effected a sale of appellant's property and had earned his commission, so that the agreement in evidence, pleaded by appellant, had no relation either to the delivery or the consideration of the note. It was verbal, and simply covered a contingency, the happening or non-happening of which might affect the payment of the note. There was no ambiguity in the note, it was in the usual form and negotiable, but, if the agreement would result in defeating the note, then such agreement would have the effect of varying the terms of the written instrument by parol.

It is apparent from the facts in this case that appellee negotiated a sale of all this property to Broeg and Koltermann; he then earned the commission which appellant agreed to pay him, and there was no consideration for Prasifka agreeing to accept a note in lieu of his commission, especially conditioned on the payment of the $6.000 note given by Broeg and Koltermann. This $6,000 note was not paid by Broeg and Koltermann, but the property was reconveyed to appellant, and he assumed the payment of the note, and now owes the same.

We think this case has been fairly tried, without error, and that justice was administered.

The judgment is affirmed.

On Appellee's Motion for Rehearing.