Behrens v. Kirkgard

• Decision Date: 20 January 1912
• Citation: 143 S.W. 698
• Parties: BEHRENS et al. v. KIRKGARD.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

143 S.W. 698

BEHRENS et al. v. KIRKGARD.^†

Court of Civil Appeals of Texas. Dallas.

January 20, 1912.

Rehearing Denied February 10, 1912.

Error from District Court, Dallas County; Kenneth Foree, Judge.

Action by S. Kirkgard against F. L. Behrens and others. There was a judgment for plaintiff, and defendants bring error. Affirmed.

Gano, Gano & Gano, for plaintiffs in error. Dabney & Townsend, for defendant in error.

RAINEY, C. J.

This suit was brought by defendant in error, Kirkgard, against the plaintiffs in error, to recover on a vendor's lien note executed by J. M. Hail, and payable to F. L. Behrens and Irby Walton. The note was transferred several times, finally reaching Kirkgard, who is now the owner. The indorsers were made parties, who pleaded a verbal understanding as to themselves that they were not to be personally liable as indorsers, and further to the effect that the form of their indorsement on their faces imports only a transfer of the title to the notes, and does not impose upon them any personal liability. Plaintiff presented an exception to said answer, which was sustained by the court, and a judgment was rendered against the maker and indorsers. This writ of error is prosecuted by all of the indorsers; Hail, the maker, accepting the judgment.

The indorsements on the note are as follows:

"For value received I hereby sell, transfer and assign to F. L. Behrens my one-half interest in the within note, together with the vendor's lien on the property securing same, and as endorser guarantee the payment of the within note at maturity, or on demand at the time after maturity, waiving demand, protest and notice of nonpayment thereof.

                                          "Irby Walton
                

"For value received I hereby sell, transfer and assign to R. D. Seaton this note, together with the vendor's lien on the property

                securing the same.     F. L. Behrens
                

"For value received I hereby sell, transfer and assign to S. M. Wood this note, together with vendor's lien on the property securing

                same.                      R. D. Seaton
                

"For value received I hereby sell, transfer and assign to S. Kirkgard this note, together with vendor's lien on the property securing

                same.   S. M. Wood.   S. Kirkgard."
                

The first transfer was printed, but it will be noted that the latter part thereof was erased. This erasure was made before it was signed. The indorsers, Behrens, Walton, Seaton, and Wood contend "the words, `I hereby sell, transfer and assign my interest in the note, together with the vendor's lien on the property securing same,' are simply words of conveyance and do not operate as an indorsement of commercial paper according to the law merchant. Such words simply convey the note as personal property, but do not obligate the transferror as indorser to pay the note." This contention raises the main question for our determination.

The rule that every indorsement consists prima facie of two distinct contracts, (1) the present transfer and negotiation of the note, and (2) the assumption of a future contingent liability on the part of the indorser, does not prevail in this state, where there is no specific language restricting the indorsement. The indorsements herein do not, in our opinion, contain any restrictive language which limits the...