Barnett v. John G. Logue's Adm'rs

Decision Date31 January 1867
PartiesNATHANIEL BARNETT v. JOHN G. LOGUE'S ADMINISTRATORS.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

The plea of the administrator, under oath, which denies that his testator executed the notes, is a good plea of non est factum, under the 86th section of the act to regulate proceedings in the district court. Pas. Dig. art. 1443, note 549; 2 Tex. 146;15 Tex. 297.

A plea which merely denies the execution of a note, under article 1443, does not put in execution the assignment or indorsement, under the 16th section of the act about negotiable paper. Pas. Dig. art. 225, note 287.

Although the bearer or indorsee of a note has the legal title to it, he may maintain a suit in his own name; yet if he paid no consideration for it, or holds it in trust for the payees, the maker is entitled to make any defense which he could make if the payees were the plaintiffs. Pas. Dig. art. 222, note 285.

Whether the declarations of one of the payees against the note are admissible evidence depends upon the good faith of the transfer.

The jury were instructed, that if the notes were the property of the original payees, and not of the indorsee, who was plaintiff, they must find for the defendant. This was error. The possession of the notes, as bearer or indorsee, with the consent of, or in trust for, the payees, although they were in fact their property, was sufficient to authorize a recovery, subject to all proper defenses against the payee. Pas. Dig. art. 222, note 285.

APPEAL from Colorado. The case was tried before Hon. BENJAMIN SHROPSHIRE, one of the district judges.

Nathaniel Barnett sued G. T. Jamison and C. Windron, as administrators of John G. Logue, upon three notes, the first dated 23d March, 1860, payable four months after date to H. K. Lewis, for $1,031.25, which note was indorsed to the plaintiff; the other two were dated 13th April, 1860, payable to Allen & Record, or bearer, each for $9,000, due at twelve and eighteen months, which were indorsed to the plaintiff. These notes were all averred to have been presented to the administrators, duly authenticated, under the statute, and that the administrators allowed the first, but rejected the two $9,000 notes. There is no averment that the first was approved by the county judge. Pas. Dig. arts. 1309-1311, notes 483-485.

The defendants plead non est factum as to the two $9,000 notes, strictly under the 86th section of the act to regulate proceedings in the district court. Pas. Dig. art. 1443, note 549. They also plead, that the first note had been allowed by the administrator (but not that it had been approved by the judge), and therefore the court had no jurisdiction of it. There were also two special pleas, as follows:

“And for answer, this defendant says that, if the two notes of $9,000 each ever were executed by the said J. G. Logue, which is denied, the same were accommodation notes, and were executed without any consideration; that the said John G. Logue had sold to the said Allen & Record, Henry Canfield's headright league of land, lying and situated in Sabine county, Texas, for the sum of $18,000, on or about the day of the date of the two said notes of $9,000 each, and was unable to make title for want of the field-notes of said league of land, and said notes were given to remain in custody of the said Allen & Record to hold until the said J. G. Logue could return to Columbus, Texas, and get the field-notes of said league of land to make the title agreed upon. That the plaintiff, well knowing these facts, obtained possession of said notes from the agent of Allen & Record, without any consideration being paid by him for said notes, with instructions to deliver the notes up to J. G. Logue, upon his making the title to said league of land. That afterwards, on the 26th day of April, 1860, the said J. G. Logue executed to the said Allen & Record a good and valid deed for said Henry Canfield's league of land, in conformity to said agreement, and tendered the same to Allen & Record, and demanded his two said notes to be returned to him, in conformity to their agreement; but the said Allen & Record, combining and confederating together, for the purpose and with the intention of defrauding the said J. G. Logue, refused to deliver up the said notes to be canceled as they had agreed so to do, and receive the title to said league of land. This defendant, therefore, prays that the court decree that said notes be canceled and delivered to this defendant, and that this cause be dismissed at the cost of the plaintiff.

And, for further answer, this defendant saith, that, if the notes sued on ever were executed by the said J. G. Logue, which is denied, the same have been paid off by the said John G. Logue in his life-time, by the making and tendering the deed to the Henry Canfield league of land, as per agreement between Allen & Record and J. G. Logue, and of this he puts himself upon the country.”

The plaintiff excepted to the plea of non est factum on untenable grounds, and to the first special plea because it was not sworn to; because it was not alleged that the notes were not transferred after maturity, or that the plaintiff had notice of the defense; and he averred that he was the innocent holder of the note. In an amended answer, the administrator repeated all his defenses, and added, that the plaintiff was only the bailee of Allen & Record, who were still the real owners of the notes, and he prayed that the title to the said Canfield league of land be made to Allen & Record, and that the notes be canceled. This plea was sworn to.

Windron and Jamison, having ceased to be administrators of Logue, these defenses were put in by Alexander Dunlavy, the administrator de bonis non, in whose name the defense was ordered to progress. No notice was taken of the exceptions by the court.

The execution of the notes was proved by the plaintiff, and the notes read to the jury; the consideration was a stock of goods bought by the maker of the payees. The indorsement for money paid was proved to have been made in May, 1860. This was by witnesses who saw the notes executed and saw them indorsed.

Some witnesses for the defense threw discredit upon the signatures; but the attorney for the defense swore to being present when Record and Logue were trying to settle the notes, and that Record admitted that it had been agreed to receive the Canfield league of land in payment; but that the land had been attached by the creditors of the payees, and hence they had declined to take the land, and had transferred the notes.

The court virtually instructed the jury to find against the defendants as to the first note, which had been allowed by the administrator and not disapproved by the chief justice. As to the others, he charged that, if Logue executed them, the jury would find for the plaintiff, provided they believed that the plaintiff was the owner of the notes, by transfer for valuable consideration, before maturity; and that, if the jury believed that the notes were not the property of the plaintiff, but still remained the property of Allen & Record, they would find for the defendants. He further instructed the jury, that if the plaintiff purchased them without notice of the payment, or failure of consideration, they would find for the plaintiff. The jury rendered a verdict for the defendants. A motion for a new trial was overruled, and the plaintiff appealed from the judgment.

J. T. Harcourt, for appellant. 1. The court erred in overruling the plaintiff's exceptions to the defendant's answer.

It is believed that the plea of non est factum, as to the signature of Logue, was not well plead, and was not properly supported by affidavit.

The statute provides, “That when a suit shall be instituted by any assignee or assignees, of any of the aforesaid instruments (meaning negotiable paper), the assignment or assignments thereof shall be regarded as fully proved, until the defendant or defendants shall deny in his plea that the same are genuine, and, moreover, shall file, with the papers of the cause, an affidavit stating that he or they have good cause to believe, and do verily believe, that one or more of such assignments were forged.” Pas. Dig. art. 224.

The plea was also liable to the objection that it proposed to vary, by oral evidence, the legal effect of a contract in writing. Rockmore v. Davenport, 14 Tex. 602.

2. The second assignment of error calls in question the ruling of the court as to the admissibility of the parol testimony of F. Barnard. This evidence was clearly inadmissible under the law and the state of the pleadings. The evidence was improperly received, because it attempted to vary and contradict the written contract of the parties. 2 Phil. Ev. 357, 358; Notes to Phil. Ev. part 2, p. 593, note 295.

The possession of the notes by the plaintiff at the time of the trial was sufficient evidence of his legal right to recover on them. Greneaux v. Wheeler, 6 Tex. 523.

If we should disregard the evidence of the two witnesses, Hyneman, who proved the indorsement to have been made in June, 1860, still, the notes being indorsed in blank, the law presumes the indorsement to have been made at the date of the execution of the notes. Story, Prom. Notes, § 120.

The indorsement itself imported absolute verity, unless denied by plea, supported by affidavit. Austin v. Towns, 18 Tex. 31; Ellis' Administrator v. The Planters' Bank, 7 How. (Miss.) 235.

“A fact, not having been averred, cannot be...

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  • Neyland v. Lanier
    • United States
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    • June 4, 1925
    ...although the actual ownership is in another. Thompson v. Cartwright, 1 Tex. 87, 46 Am. Dec. 95; Butler v. Robertson, 11 Tex. 142; Barnett v. Logue, 29 Tex. 282; Rodgers v. Bass, 46 Tex. 505; Andrews v. Hoxie, 5 Tex. 171; De Cordova v. Atchison, 13 Tex. 372; Allison v. Phœnix Assurance Co., ......
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