Blondeau v. Sommer

• Decision Date: 04 April 1940
• Docket Number: No. 10949.,10949.
• Citation: 139 S.W.2d 223
• Parties: BLONDEAU v. SOMMER.
• Court: Texas Court of Appeals

139 S.W.2d 223

BLONDEAU v. SOMMER.

No. 10949.

Court of Civil Appeals of Texas. Galveston.

April 4, 1940.

Rehearing Denied April 25, 1940.

Appeal from District Court, Washington County; John H. Tate, Judge.

Action by Mrs. Evelyn Blondeau and husband against John Sommer to recover a sum alleged to have been lost through defendant's negligence, fraud, and misrepresentation. Judgment for defendant, and named plaintiff appeals.

Affirmed.

Emmet Alpha, Jr., of Houston, and A. W. Hodde, of Brenham, for appellant.

Rosser Thomas, of Houston, and Julian E. Weisler, of Brenham, for appellee.

MONTEITH, Chief Justice.

This is an appeal in an action brought by appellant, Mrs. Evelyn Blondeau, joined pro forma by her husband, Earl Blondeau, as independent executrix and sole devisee under the will of her deceased mother, against appellee, John Sommer, to recover the sum of $10,000, with interest and attorney's fees, alleged to have been lost through the negligence, fraud, and misrepresentation of appellee.

Appellant alleged that the appellee was a brother of her deceased mother, Mrs. Bertha Summers, who died on March 2, 1935; that her mother was unable to read or write the English language, and that for many years prior to her death she had permitted appellee to manage her business affairs; that on February 4, 1928, while acting as the agent of his said sister, he had loaned $10,000 of her money to one R. E. Pennington and had accepted from Pennington his promissory note in said sum, payable to Mrs. Summers; that as security for said loan he had accepted from Pennington a note for the sum of $22,240, payable to Pennington and secured by a vendor's lien on 3829 acres of land in Webb County, Texas; that the lien securing said note was second and inferior to a then existing original vendor's lien on said land; that on June 6, 1933, appellee accepted a renewal note from Pennington in the sum of $11,200, representing the unpaid principal and interest on said loan at that time, to which was attached the original security; that such renewal note was not paid by Pennington and resulted in a total loss of said loan by reason of the fact that the note given as collateral security was worthless. Appellant alleged that said loss was caused by the negligence of appellee in making and securing said loan, and fraud on the part of appellee and Pennington.

Appellee answered by general denial and by plea of limitation, both by exception and by special answer. He specially pled that the loan to Pennington was made by Mrs. Summers upon her faith and belief in Pennington's financial ability; that he was solvent at the time said loan was made, and that he, appellee, signed his name and Mrs. Summers' name to the check of $10,000, payable to Pennington, at her request and by her direction.

In answer to special issues submitted, the jury found that R. E. Pennington was solvent at the time said loan was made to him and that appellee obtained security from him which appeared at the time reasonably proper and adequate. Based upon this verdict the court rendered judgment in favor of appellee.

While appellant has brought forward numerous assignments of error, as we view the record the question of limitation presented by appellee by cross-assignment raises the controlling question in the case and renders the remaining assignments immaterial.

The alleged acts of negligence complained of by appellant upon which she bases her claim for recovery transpired in February, 1928, on the occasion of the execution of said note by Pennington and the delivery to him by appellee of the check for $10,000. This suit was filed on May 18, 1935. A careful examination of the record fails to...