Blucher v. Eubank
| Decision Date | 09 May 1928 |
| Docket Number | (No. 1101-5012.) |
| Citation | 5 S.W.2d 972 |
| Parties | BLUCHER v. EUBANK et al.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Supreme Court |
E. B. Ward and Kleburg & North, all of Corpus Christi, for plaintiff in error.
H. S. Bonham, of Beeville, and W. E. Pope, of Corpus Christi, for defendants in error.
On March 16, 1915, B. A. Eubank and wife executed a promissory note for the sum of $1,050, payable to the order of R. D. Sands, due three years after date, and bearing interest at the rate of 10 per cent. per annum. It was provided in the note that the interest was payable annually as it accrued, and failure to pay any annual installment thereof when due should, at the election of the holder, mature the note. The note was secured by deed of trust on land which was afterwards deeded by the Eubanks to one Luellen, who assumed payment of the above note. The note also contained the following provision:
"All sureties, indorsers and guarantors hereof hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest, and diligence in bringing suit against any party hereto; and they and each of them also agree that time of payment may be extended from time to time by the payee or his assign without further notice."
The first installment of interest fell due March 16, 1916, and was not paid. On March 20, 1916, R. D. Sands, the holder of the note, declared the note due, and demanded its payment of the Eubanks, who made like demands on Luellen. About March 25, 1916, Luellen, accompanied by Sands and B. A. Eubank, went to the bank in Corpus Christi, and, at the instance of Luellen, the cashier of the bank took up the note and paid to Sands the amount of the principal thereof with accrued interest. Sands indorsed the note in blank by writing his name on the back thereof, and delivered the note to the cashier, who said he was acting in the matter for a "customer of the bank." George A. Blucher, the plaintiff in error, subsequently became the holder of the note. According to credits appearing on the back of the note when same was introduced in evidence on the trial, interest in varying amounts was paid from time to time up to June, 1919. These interest payments, it may be inferred, were made by Luellen and those who held the land under him. On November 3, 1920, Blucher, as holder of the note, filed this suit against the Eubanks, R. D. Sands, and others, wherein he seeks to recover of the Eubanks, as makers, and Sands, as indorser, the amount of the note. He also sought foreclosure of the lien on the land. Sands, among other things, pleaded general denial and the statute of four years' limitation.
Upon trial before the court without a jury, judgment was rendered in favor of the plaintiff in error, Blucher, against all the defendants in the suit, as prayed for by him. At the trial, Sands testified without dispute to the effect that in indorsing and delivering to the cashier the note, as he did, it was his sole purpose to evidence the receipt by him of the money which he received from the cashier, and to transfer or assign the title to the note without incurring liability in any respect for the payment of the note; and that, at the time the indorsement was made, the cashier knew and understood that Sands indorsed the note for no other purpose. Both Sands and Eubank testified, without dispute, to the effect that neither had consented to avoid the legal effect of the action of Sands in declaring the note due, or to waive the maturity of the note thus effected The...
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