Bohannon v. Franklin Nat. Bank of Long Island, 16463
| Decision Date | 19 February 1965 |
| Docket Number | No. 16463,16463 |
| Citation | 387 S.W.2d 699 |
| Parties | Ross BOHANON, Appellant, v. The FRANKLIN NATIONAL BANK OF LONG ISLAND, Appellee. |
| Court | Texas Court of Appeals |
Elgar L. Robertson, Dallas, for appellant.
Wynne, Jaffe & Tinsley and Yandell Rogers, Jr., Dallas, for appellee.
Appellant Ross Bohannon has appealed from a summary judgment rendered against him in a suit filed by The Franklin National Bank of Long Island on a promissory note signed by Bohannon in the principal amount of $7,500 dated September 4, 1962, due November 5, 1962. The judgment was for $9,795, which included principal, accrued interest and attorney's fees.
In a sworn amended answer Bohannon alleged that there was no consideration for his execution of the note, that he signed the note merely as an accommodation maker for the benefit of the Bank, and that he was induced to sign the instrument by fraudulent representations by a Bank official.
We quote part of appellant's amended answer in connection with his allegations of fraud:
'YOUR DEFENDANT would show that he was not personally acquainted with the officers or agent of said bank making such representations to him but he was represented to be and YOUR DEFENDANT is informed and believes and here, now alleges the facts to be that the person representing such bank and making such representations was one, Richard E. Ast, purported to be the Manager of said Plaintiff bank.' (Emphasis ours)
A detailed statement of appellant's claim of fraud will be presented later in this opinion.
Bohannon's amended answer was filed subsequent to the filing of the Bank's motion for summary judgment and subsequent to the execution by Richard E. Ast and George F. Doherty, Bank officials, of affidavits in support of the Bank's motion.
The pleadings and affidavits of the parties agree that the note sued on was one of a series of renewal notes, the original note having been in the principal amount of $10,000, dated November 1, 1961 and due December 1, 1961.
Seven exhibits, reproductions of the Bank's records, are attached to the affidavits of the two Bank officials. The substance of the affidavits and exhibits may be summarized as follows:
Prior to November 1, 1961 the Bank had made a number of loans to a corporation known as Sovereign Resources, Inc., in which appellant Bohannon and C. M. Wood were substantial stockholders; in November 1961 the corporation was not indebted to the Bank but needed money; the Bank was unwilling to lend the corporation the money; it was then arranged for several stockholders to sign notes individually, the proceeds to be advanced to the corporation; no collateral was posted at any time to secure any of the notes; a payment of $5,000 on Bohannon's note was received on December 8, 1961; on March 2, 1962 Bohannon from Dallas forwarded by mail to the Bank his signed note for $7,500 with instructions to 'credit the additional proceeds to Sovereign Resources, Inc.'; on January 7, 1963 Bohannon forwarded another signed renewal note for $7,500 together with a promise to make a reduction of the principal amount of the next due date, February 15, 1963; the Bank refused to accept this proffered renewal note and demanded payment of the note executed by Bohannon on September 4, 1962, on which note this suit is based.
In answer to appellee's motion for summary judgment appellant Bohannon presented his affidavit in which he alleges that he did not sign a letter dated October 27, 1961 at Dallas, Texas which accompanied his original $10,000 note dated November 1, 1961 and in which letter the Bank was told to apply the proceeds of the note 'in accordance with instructions from Mr. C. M. Wood of Sovereign Resources'; that his signature on said letter is a forgery (he does not deny signing the note itself); that he did not make the payment of $5,000 on December 8, 1961 and if such payment was made it was apparently made by Sovereign Resources, Inc., or C. M. Wood or Howard K. Low.
In his affidavit Bohannon makes these allegations in support of his charge of fraud on the part of the Bank:
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