Brinker v. First Nat. Bank

• Decision Date: 01 April 1931
• Docket Number: No. 1168-5481.,1168-5481.
• Citation: 37 S.W.2d 136
• Parties: BRINKER v. FIRST NAT. BANK OF CLEVELAND, OKL.
• Court: Texas Supreme Court

37 S.W.2d 136

BRINKER v. FIRST NAT. BANK OF CLEVELAND, OKL.

No. 1168-5481.

Commission of Appeals of Texas, Section B.

April 1, 1931.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by the First National Bank of Cleveland, Okl., against P. M. Brinker and another. To review judgment of the Court of Civil Appeals [16 S.W.(2d) 965], affirming judgment for plaintiff, defendant Brinker brings error.

Reversed in part and rendered, and affirmed in part.

Holland & Moore and George K. Holland, all of Dallas, for plaintiff in error.

Robertson, Robertson & Payne, of Dallas, for defendant in error.

RYAN, J.

On February 21, 1927, defendant in error brought suit in the district court of Dallas county against Clyde Turley and P. M. Brinker, for recovery on the following promissory note:

"$1,890.00

"Cleveland, Oklahoma, March 1st, 1923.

"Six months ____ days, without grace, after date, for value received, we as principals, promise to pay to the order of

"The First National Bank, of Cleveland, Oklahoma, Eighteen Hundred Ninety and no/100 Dollars, at the First National Bank, of Cleveland, Oklahoma, and interest thereon at the rate of ten per cent per annum, from Maturity until paid, and in case of legal proceedings to collect this note, or in case it is placed in the hands of an attorney for collection, agree to pay an additional sum of ten per cent. on the amount of the note as attorney's fees. The sureties, endorsers and guarantors of this note severally waive extension of time of payment, presentment and demand for payment, protest and notice of protest for non-payment of this note.

                                          "Clyde Turley
                                          "Vick Wear
                                          "P. M. Brinker
                  "Due September 1st, 1923."
                  Indorsed
                  Sept. 10th, 1923 paid $15.00
                  Sept. 26th, 1923 credit 10.00
                  Oct. 16th, 1923 credit 15.00
                  Interest paid to 12—1—1923
                

It was averred in the petition that "Vick Wear is not made a party for the reason that he is dead and his estate is insolvent."

The defendant Turley did not defend. The defendant Brinker pleaded as defenses:

(1) That he, at the bank's request became only an accommodation indorser, received no consideration therefor, and, if the note sued on purports to have been made by him as a principal obligor, this was because of a mutual mistake between him and the bank.

(2) That, after the maturity of said note, the bank accepted the note of said Turley, individually, as of date December 1, 1923, and other notes in renewal thereof, also so signed by Turley, and which Brinker refused to sign, in payment of the note sued on, and the bank recognized the obligation as being only that of Turley; also that said Brinker did not consent or agree to any renewal or extension of the date of payment of the note sued on, and never, at any time, received any consideration whatsoever on account of any such renewal or extension, and, if any waiver or agreement as to extension of payment date is contained in said note of March 1, 1923, the same is invalid, unenforceable, and not binding on him, because no consideration therefor ever was received by him.

The proof shows that Brinker and Wear had a mercantile business at Cleveland, Okl., and Brinker in the spring of 1920 negotiated a sale of his interest to Turley for $2,500. Turley did not have the money, and he applied to the bank for a loan, which, according to Turley's testimony, the bank agreed to make upon a note signed by Turley and Wear. The president of the bank asked Brinker also to sign the note, which he finally did, and the proceeds were credited to Turley, and by him paid to Brinker in consummation of the trade. This note was executed in 1920, and was due six months after date. There were several renewals brought about in the following manner: A renewal note was delivered to Turley, who in turn secured the signatures of Wear and Brinker, delivered the renewal note to the bank, and took up the old note.

Mr. Brinker testified that he executed the note of March 1, 1923, the one in suit, at the request of Mr. Turley. When it became due, Brinker refused to renew it, but the bank accepted a renewal signed by Turley and Wear alone. There were several subsequent renewals by Turley alone, as to each of which the preceding note was surrendered when the renewal note was delivered, but the bank always retained possession of the March 1, 1923, note.

When the original note to the bank was executed in 1920 by Turley, Wear, and Brinker, the bank gave Turley a checking account, and Turley wrote and gave Brinker a check for the latter's interest in the business of Brinker and Wear.

The district court's judgment was upon a directed verdict in favor of the bank for the full amount of the note, against Turley and Brinker; this judgment was affirmed by the Court of Civil Appeals, on Brinker's appeal. 16 S.W.(2d) 965.

The bank has retained and never surrendered possession of the note sued on herein; it has not been paid by the makers, and is a valid outstanding obligation against Brinker as one of such makers, unless he has been released as a matter of law because the bank accepted new notes from Turley alone in extension and renewals thereof, without Brinker's consent.

This brings us to the question whether Brinker was primarily or secondarily liable— if the latter, then such extensions by the bank, without his consent, had the effect to release him, and the plea of discharge urged by him should have been sustained by the trial court, unless such defense was abrogated by the Uniform Negotiable Instruments Act (title 98, Rev. Stat. 1925 [article 5932 et seq.]).

In several of the states the doctrine is announced that, under the Uniform Negotiable Instruments Act, one who signs as principal maker of a promissory note, although in fact a surety and known to the payee to be such, is not discharged by the granting of an extension of time for payment to the principal debtor without his consent, upon the theory that the act designates five different ways (which are exclusive) whereby such discharge can be effected, not one of which embraces an extension of the time of payment, although it is expressly provided that those secondarily liable may be discharged by any agreement binding on the holder to extend the time of payment, or to postpone the holder's right to enforce the instrument unless made with the assent of the person secondarily liable, or unless the right of recourse against such party is expressly reserved. Union Trust Co. v. McGinty, 212 Mass. 205, 98 N. E. 679, Ann. Cas. 1913C, 525, and annotations thereunder, page 528.

In Iowa, however, says the annotator, it has been held that, where the issue is between the parties to the instrument, as between the payee and an accommodation joint maker the Negotiable Instruments Act does not apply, the payee in such a case not being regarded as a holder in due course, and therefore an extension of time by the payee to the principal debtor without the consent of an accommodation joint maker will release the latter. Fullerton Lumber Co. v. Snouffer, 139 Iowa, 176, 117 N. W. 50.

The view of the Iowa Supreme Court, as above stated, is expressly approved by our Supreme Court, in J. I. Case Threshing Machine Co. v. Howth, 116 Tex. 434, 293 S. W. 800, 801, and must therefore be accepted in this state as the rule governing in cases like this.

This subject is so thoroughly discussed by Associate Justice Looney of the Court of Civil Appeals in the same case, reported in 280 S. W. 238, 240, and in the approving opinion by Associate Justice Greenwood of the Supreme Court, above referred to, we can add nothing thereto.

The conclusions reached in that case are applicable to the facts in this case, viz. (a) the original payee is not a holder in due course, and the note is therefore subject to every defense to which it would be subject as if it were nonnegotiable; (b) a complete defense to the suit of a nonnegotiable note in behalf of an accommodation maker would be established by his pleading and proving that the holder of the note had made a binding agreement with the principal obligor to extend the note for a definite time, with knowledge of the status of the accommodation maker and without his consent.

Said Justice Looney: "The defendant in error is an original party to the instrument sued upon, and therefore is not a holder in due course, within the meaning of the Negotiable Instruments Act. This being true, under the unambiguous provision of the statute just quoted, the defendant in error can occupy no better position than the holder of a nonegotiable instrument; it follows, therefore, that the discharge pleaded by plaintiff in error was available as a defense just as it existed at common law prior to the enactment of the Negotiable Instruments Act."

Judge Greenwood used the following language: "A...