Williams v. Merchants' Nat. Bank

• Decision Date: 12 April 1887
• Citation: 4 S.W. 163
• Parties: WILLIAMS and others v. MERCHANTS' NAT. BANK OF KANSAS CITY.
• Court: Texas Supreme Court

4 S.W. 163

WILLIAMS and others v. MERCHANTS' NAT. BANK OF KANSAS CITY.

Supreme Court of Texas

April 12, 1887.

Appeal from district court, Cooke county.

Davis & Garnett, for appellants. Potter & Hughes, for appellee.

WILLIE, C. J.

This suit was brought upon the following instrument in writing:

                                                  "GAINESVILLE, TEXAS, September 1, 1883
                

"Nine months after date, I promise to pay to the order of myself twelve thousand five hundred dollars, for value received, payable at the office of Gainesville National Bank, Gainesville, Texas, with interest from maturity until paid at the rate of 12 per cent. per annum. In case of non-payment of the above note at maturity, I hereby authorize any licensed attorney at law to appear for me in court, and to accept service, waive process, and confess judgment in favor of the legal holder of said note against me for the amount of said note, and interest, with ten per cent. attorney's fees additional."

This note was signed by "W. H. Williams," and indorsed: "W. H. WILLIAMS. H. E. WASHINGTON. JNO. H. STONE G. W. BAREFOOT. T. J. HALL." It was further indorsed: "Pay Gainesville National Bank, or order, for collection, account of Merchants' National Bank, Kansas City, Mo. O. P. DICKINSON, Cashier."

The suit was filed April 20, 1885, by the appellee against the maker and all the indorsers of the note, and on the same day an attorney at law appeared for the defendants, under the authority supposed to have been given in the note, accepted service, waived process, and confessed judgment against all the defendants for the full amount then due upon said note, and 10 per cent attorney's fees additional, and judgment was rendered accordingly. A motion for a new trial made by the defendants was overruled, and they have brought the case by appeal to this court.

Upon the face of the note, no power is given to confess judgment against any one except the maker. We need not inquire as to whether this power would embrace others who signed the note before delivery, for the legal presumption is that the present indorsers did not so sign. Their names appear after that of the payee, and the presumption of the law is that they placed them there after the payee had indorsed, and that the note passed from the payee successively through the hands of the subsequent indorsers till it reached the holder. Rickey v. Dameron, 48 Mo. 61; Roberts v. Masters, 40 Ind. 463; Clapp v. Rice, 13 Gray, 403; 1 Daniel, Neg. Inst. 707 et seq.; Blatchford v. Milliken, 35 Ill. 434.

It is true that the petition alleged that these parties signed their names before delivery; but, such not being the presumption of law, parol proof was required to prove it. Such proof is not admissible in a proceeding like this to establish anything outside of what appears upon the instrument itself. The authority to confess extends only so far as to allow judgment according to the legal tenor and effect of the note; and the plaintiff cannot vary its obligation, or make parties liable to the summary judgment he is taking, who, according to the terms of the note itself, have not authorized him to take such judgment. This court held, in ...