Barber v. Corpus Christi Bank and Trust

• Decision Date: 21 February 1974
• Docket Number: No. 811,811
• Citation: 506 S.W.2d 254
• Parties: W. J. BARBER, Appellant, v. CORPUS CHRISTI BANK & TRUST, Appellee.
• Court: Texas Court of Appeals

Page 254

506 S.W.2d 254

W. J. BARBER, Appellant, v. CORPUS CHRISTI BANK & TRUST, Appellee.

No. 811.

Court of Civil Appeals of Texas Corpus Christi.

Feb. 21, 1974.

Bob J. Spann, McDonald, Spann & Smith, Corpus Christi, for appellant.

Robert W. Dupuy, Wood, Boykin & Wolter, Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This is a promissory note case. Corpus Christi Bank and Trust instituted the suit against Robert Choate and W. J. Barber. The cause was severed as to Choate and a judgment was taken against him. That judgment was not appealed. Thereafter, the cause proceeded to trial (before a jury) against Barber. The jury found that Barber did not sign the note as a 'borrower' (Special Issue No. 1), but did sign the same as an 'accommodation endorsement' (Special Issue No. 2). Judgment was rendered for the Bank against Barber for the amount due on the note, plus interest thereon. The defendant Barber has perfected an appeal to this Court. We affirm.

Plaintiff (Bank) alleged that defendants (Choate and Barber) 'on or about September 1, 1971, executed and delivered to Corpus Christi Bank and Trust their promissory note in the principal amount of $4859.88; that 'said note is past due and unpaid'; and 'same is presently owned and held by Corpus Christi Bank and Trust'. Defendant (Barber) denied the allegations contained in plaintiff's petition, and alleged that 'this defendant has executed no instrument in writing creating liability on his part' and that his signature 'on the basic application was for accommodation only and he has no obligation on the principal obligation'.

The matter to be determined is whether the signature of Barber on the document which was introduced in evidence by plaintiff as plaintiff's Exhibit No. 1 rendered Barber liable to plaintiff. We hold that it did.

Plaintiff's Exhibit No. 1 consists of one page, is entitled 'NOTE-UNSECURED-WITH LOAN STATEMENT', and identifies Corpus Christi Bank & Trust as 'LENDER'. Two columns of writing occupy the upper two thirds of the page; the left column contains language usually found in promissory notes, including the following recitations:

'FOR VALUE RECEIVED, I, we, or either of us (BORROWER), promise to pay to the order of LENDER at the address of LENDER stated above, the sum of $4859.88 payable . . .

Each of the undersigned hereby waives presentation hereof for payment, . . .'

The right column of the upper two thirds of the exhibit contains data under the heading 'Disclosure Column'.

The lower one third of the exhibit contains two paragraphs that occupy all of that portion of the page. The first paragraph gives the borrower an option of 'credit life' or 'credit, life, accident and health' insurance. The block 'credit life' was checked. Immediately under the insurance options appears the signature of Robert Choate as 'Borrower'. The paragraph concludes with another insurance option. The insurance options are not involved in this appeal. The second paragraph in the lower one third of the exhibit reads as follows:

'BORROWER hereby acknowledges that this Combined note, loan statement and Truth in Lending Disclosure was completed as to all essential provisions and disclosures before it was signed by BORROWER and a copy thereof was delivered to BORROWER at the time of signing'. (Emphasis supplied.)

Immediately thereunder is a line wherein the words and figures 'Robert Choate 3502 Ayers CC' appear in handwriting; below the line in parenthesis are the machine printed words '(BORROWER'S name, address and telephone No.)'. Immediately under the aforesaid line are two lines, one on the left side of the page and one on the right . Under each line in parenthesis are the words '(Signature of BORROWER)'. Robert Choate signed on the left line and W. J. Barber signed on the right line.

Special Issue No. 2 and the jury's answer thereto reads, as follows:

'Do you find from a preponderance of the evidence that W. J. Barber did not sign Plaintiff's Exhibit No. 1 as an accomodation endorsement?

In connection with your consideration of this Special Issue, you are instructed that an accomodation endorsement is one made for the purpose of lending credit to the accomodated party without any consideration moving to the accomodating party.

Answer 'We do' or 'We do not.'

Answer: 'We do not."

Defendant, in his fifth point, complains that the trial court erred in submitting Special Issue No. 2. Numerous reasons are given in support of the asserted error. We cannot consider the point because the propriety of submitting the issue is not properly before us in this appeal. The transcript contains an instrument which shows that defendant dictated certain objections to the submission of that issue, but the record does not reveal that the transcribed objections were ever presented to the trial judge so that he could endorse his ruling and official signature thereon as required by Rule 272, Texas Rules of Civil Procedure. We, therefore, consider the issue and the jury's answer thereto as though no objections were made. Rule 272, supra; Grabes v. Reinhard Bohle Machine Tools, Inc., 381 S.W.2d 395 (Tex.Civ.App.--Corpus Christi 1964, writ ref'd. n.r.e.); Charter Oak Fire Insurance Company v. Perez, 446 S.W.2d 580 (Tex.Civ.App.--Houston 1st Dist. 1969, writ ref'd n.r.e.). Defendant's fifth point is overruled.

Defendant's sixth point of error reads, as follows:

'The Judgment of the Trial Court should be set aside because it is based upon the answer to Special Issue No. Two which is objectionable because: (a) It is not supported by any evidence; (b) It is not supported by sufficient evidence; (c) It is not supported by proper pleadings; (d) Any affirmative answer to the issue would be against the overwhelming weight and preponderance of the evidence .'

The point does not present fundamental error. We consider the point as being multifarious and too general to comply with the requirements of Rule 418, T.R.C.P. A point of error is multifarious if it embraces more than one specific ground of error. City of Shamrock v. Hrnciar, 453 S.W.2d 898 (Tex.Civ.App.--Eastland 1970, writ ref'd n.r.e.); Johnson-Sampson Const. Co., Inc. v. W & W Waterproofing Co., 274 S.W.2d 926 (Tex.Civ .App.--Amarillo 1953, writ ref'd n.r.e.); Appellate Procedure in Texas, § 12.4(4), (5). However, it has long been the policy of this Court to indulge a liberal construction of the briefing rules in favor of the sufficiency of a brief and to give effect thereto if we can determine with some degree of certainty the nature of the point. We, therefore, test the sufficiency of the point in accordance with the rule which requires us to look to the statement and argument under the point. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); Tindall v. Tacconelly, 328 S.W.2d 909 (Tex.Civ.App.--San Antonio 1959, writ ref'd n.r.e.). More than one legal question is involved and more than one specific ground of error appears in the one point. The statement and argument, when viewed in its entirety, encompass the entire lawsuit; a conglomerate of law and fact points is presented. Subdivision (a) of the point is a 'no evidence' point, and subdivision (c) presents a question relating to pleadings; both are law points, and, if either is sustained, the case must be reversed and rendered. Subdivision (d) raises a question of fact; if it is sustained, the case must be reversed and remanded, rather than rendered. Subdivision (b) is ambiguous; it can mean that the evidence is legally insufficient to support the judgment, which will present a law question, or it can mean that the evidence is factually insufficient, which will present a fact question. After carefully considering the statement and argument in defendant's brief, we are unable to determine the precise nature of the point. As written, the point presents questions of fact within the peculiar and factual jurisdiction of the Court of Civil Appeals, and questions of law within the jurisdiction of the Supreme Court as well as within that of the Court of Civil Appeals. See Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). Each of the subdivisions set forth in the point presents a different question to and guideline for an appellate court to follow in properly disposing of the point of error. Owens v. Rogers, 446 S.W.2d 865 (Tex.Sup.1969); United States Fidelity & Guaranty Co. v. Harris, 489 S.W.2d 312 (Tex.Civ.App.--Tyler 1973, writ ref'd n.r.e.). The point does not meet the test imposed by Fambrough v. Wagley, supra, and Tindall v. Tacconelly, supra. For the reasons stated, defendant's sixth point is overruled. However, if the point were to be considered as not being multifarious, a careful examination of each of the complaints contained in the four subdivisions of the point, fails to reveal reversible error.

We next consider defendant's first, second, seventh and eighth points. It is his contention in his first point that the trial court should have granted his motion for instructed verdict because the instrument offered as plaintiff's Exhibit No. 1 was in fact two instruments consisting of 1) a note, and 2) a truth in lending statement, and that defendant did not sign the portion thereof which constituted the note. In his second point, he asserts that the trial court erred in not granting his motion for judgment after the verdict because there was no pleading by plaintiff to support a recovery against the defendant Barber in any capacity other than as borrower. He complains, in his seventh point, that the trial court failed to submit his defensive theory of the case, i.e., that plaintiff's Exhibit No. 1 is ambiguous and the court's charge does not submit the questions 1) whether defendant actually...