Brown v. Chenoworth

Decision Date01 January 1879
Citation51 Tex. 469
PartiesB. BROWN AND E. A. BROWN v. FLORENCE CHENOWORTH.
CourtTexas Supreme Court

OPINION TEXT STARTS HERE

APPEAL from Travis. Tried below before the Hon. E. B. Turner.

Florence Chenoworth, joined by her husband, John Chenoworth, brought suit to the April Term, 1877, of the District Court of Travis county, against J. S. Able, B. Brown, and E. A. Brown, on a promissory note of $11,000.

This note, she charged in her petition, had been executed and delivered by B. Brown and E. A. Brown to said J. S. Able for the purchase-money of three leagues and eleven labors of land in Kaufman county, Texas; that at the time of the execution of the note a deed was given by Able to B. Brown and E. A. Brown for the land in Kaufman county for which the note was given, and a vendor's lien reserved in the deed to secure the payment of the note; that Joseph S. Able, the payee of the note, transferred it before maturity, for a valuable consideration, to her, Florence Chenoworth.

On April 24, 1878, appellants filed an amended answer, which contained a general denial, and the further pleas, that on the 21st of March, 1877, they paid appellee and her husband $350, which was accepted by them in full settlement of all matters involved in this suit; that appellee was not the owner nor the rightful holder of the note; that Joseph S. Able, the payee of the note, was adjudged a bankrupt while said note was his property, and all his property, including the note sued on, was transferred to John C. West, assignee of said Able, and after the discharge of said West, belonged to the creditors of Able, a small pro rata amount of their debts having been paid by the assets of Able administered in bankruptcy; that appellants paid the note to J. S. Able, and that afterwards he transferred it to his daughter as a gift.

Appellants also pleaded non est factum.

Appellee filed a supplemental petition April 26, 1878, in which she made her husband, John Chenoworth, a defendant. She demurred to the fifth count of appellants' answer, which set up that the note was not her property, by reason of the bankruptcy of Able, and the demurrer was sustained. She charged that she was forced to sign the compromise of the 21st of March, 1877, by force, threats, and fraud used by her husband and appellants, and traversed each of the counts in appellants' answer.

Appellants demurred to that part of appellee's replication in which she asked leave to make her husband a defendant and to proceed alone as plaintiff. The demurrer was overruled.

The parties went to trial on the merits of the case. There was a judgment in favor of plaintiff, against appellants and Joseph S. Able, for $15,707.66, foreclosing the vendor's lien on and ordering the sale of the land in Kaufman county.

Appellants filed motion for new trial, which was overruled by the court, whereupon they gave notice of appeal to the Supreme Court. The assignments of error noticed are apparent from the opinion.W. M. Walton and John B. Rector, for appellants.

I. The court erred in refusing to give a jury in this case on the demand of the defendants Ben Brown and Earl A. Brown, which demand was made at the Spring Term of the District Court of Travis county, 1878, and said refusal of the court was excepted to at the time it occurred. (Jury Act of 1876, sec. 18, p. 81; sec. 11, p. 171.)

II. The court erred in sustaining plaintiff's exception and demurrer to the fifth count of the answer filed April 24, 1878, by defendants Brown and Brown. (Bump on Bank., sec. 5044, p. 480, ed. of 1877; Moore v. Jones, 23 Vt., 740-746;David v. Ferrand, 2 La. Ann., 596; Kane v. Pilcher, 7 B. Monr., 654; Holbrook v. Coney, 25 Ill., 547; Burton v. Lockert, 9 Ark., 411.)

III. A defendant on cross-examination by his adversary--the plaintiff--cannot be compelled to answer whether his signature shown to him is his, unless he be permitted to examine the writing to which it is subscribed.

It was error in this case--

First. Because said question, as put, is illegal, under the circumstances of the case.

Second. Because the witness cannot be legally asked to answer as to the isolated signatures.

Third. Before the witness can be questioned as to the signatures, he should be privileged to inspect said several papers and ascertain their nature, character, and contents.

Fourth. Because the examination of the witness in the manner proposed was unfair to the witness. The court overruled said objections, and required the witness to answer the questions as asked; to which ruling appellants excepted, and their bill of exceptions was allowed and marked number 5. (North American Fire Ins. Co. v. Throop, 22 Mich., 160; Commonwealth v. Whitney, Thach. (Mass.) Cr. Cas., 588.)

IV. The plaintiffs did not explain, before or after the introduction in evidence of the note sued on, the material alterations apparent on the face of said note, as they were required to do by the plea of non est factum interposed by the defendants Brown and Brown.

Appellants pleaded non est factum as to the note sued on. The original note is sent up with the transcript in this case by order of the court, and the alteration in the note is in the date thereof. While there is much evidence pro and con. as to the execution of the note, there is an entire absence of evidence to explain the alteration of said note. (2 Pars. on Notes and Bills, 2d ed., p. 550; 2 Greenl. Ev., 2d ed., secs. 294, 300; 1 Greenl. Ev., 3d ed., secs. 564, 565, 568, 568 a; Speak v. The United States, 9 Cranch, 28; 1 Phil. Ev., Cow. & Hill's Notes, 4th Am. ed., note 177; 2 Phil. Ev., Cow. & Hill's Notes, 4th Am. ed., note 432; 2 Pars. on Notes and Bills, 2d ed., 575; Bowers v. Jewell, 2 N. H., 543;Martendale v. Follet, 1 N. H., 95;Barrington v. Bank of Washington, 14 Serg. & R., 423-425;Chesley v. Frost, 1 N. H., 145;Smith v. Crooker, 5 Mass., 540, note a; Hatch v. Hatch, 9 Mass., 311;Hunt v. Adams, 6 Mass., 521, 522.)

V. The court erred in admitting the declarations of John Chenoworth in evidence over the objections of defendants Brown and Brown. (Baily v. Trammell, 27 Tex., 317; 1 Greenl. Ev., secs. 111, 334, 336; McKay v. Treadwell, 8 Tex., 178, 179.)

Ward & Pendexter, for appellee.

I. In order to be entitled to a jury, the party demanding the same must deposit, by 9 o'clock A. M. of the day fixed by the court for the trial of jury causes, a jury fee of $5 with the clerk of the court, or make affidavit of inability so to do.

This suit was instituted on the 28th day of December, 1876. The record fails to show that a jury fee was ever deposited in court at all, or that any affidavit was made stating an inability to do so. (Acts of 1876, secs. 11, 18, pp. 81, 171; Cushman v. Flanagan, 50 Tex., 389.)

II. In order to be entitled to a jury, demand must be made for the same and jury fee deposited by 9 o'clock A. M. of the day fixed by the court for the trial of jury causes, at the first term of the court at which the case could be tried. (Acts of 1876, secs. 11, 18, pp. 81, 171; Cushman v. Flanagan, 50 Tex., 389.)

III. A maker of a promissory note payable to a particular payee or bearer, cannot, in a suit brought by an indorsee, defend himself on the ground that the payee had no capacity to indorse it by reason of being a bankrupt. (Jackson v. Elliott, 49 Tex., 69; 1 Dan. on Neg. Inst., sec. 93, p. 73; Drayton v. Dale, 2 Barn. & Cress., 293.)

IV. It is proper for the plaintiff, on the cross-examination of a defendant who has filed a plea of non est factum to the instrument sued on, to submit to the defendant in such examination his signatures attached to the several instruments admitted to be genuine, and interrogate him in regard to said signatures without showing him the contents of said instruments, for the purpose of testing his ability to recognize his signature when he sees it.

V. A prima-facie case of conspiracy between John Chenoworth, Dr. B. F. Hammond, (agent of the Browns,) and the Browns having been established, it was not error in the court to admit the declarations of John Chenoworth, one of the conspirators, touching the execution of the common design. (1 Greenl. Ev., sec. 111, pp. 141, 142, and authorities there cited.)

VI. A principal cannot ratify a contract obtained fraudulently by his agent without becoming thereby a party to the fraud. (1 Pars. on Cont., 2d ed., p. 44, and authorities there cited; Story on Cont., 2d ed., sec. 164; Hovey v. Blanchard, 13 N. H., 145; Jennings v. Moore, 2 Vern., 609; Henderhen v. Cook, 66 Barb., 21; Story on Agency, pp. 298-307, and authorities there cited.)

BONNER, ASSOCIATE JUSTICE.

The first assignment of error is as follows: The court erred in refusing to give a jury in this case on the demand of the defendants Ben Brown and Earl A. Brown, which demand was made at the Spring Term of the District Court of Travis county, 1878, and said refusal of the court was excepted to at the time it occurred.

The bill of exceptions shows that at the commencement of the term of the court the judge set the jury trial docket in civil cases for the fourth week, and proceeded to work on the non-jury docket. During the first week, and before this cause was reached as a non-jury case, the appellants asked the court to grant them a jury in said cause, which request was refused, on the ground that a jury had not been demanded at a prior term of the court, the case having been at issue before the day fixed at the prior term of the court for calling the jury trial docket. Appellants excepted to the ruling of the court refusing a jury.

In the case of Dean v. Sweeney, ante, p. 242, decided at the late Galveston Term, we held that the acts of the fifteenth Legislature, 78 and 170, were not intended as an abridgment of the common-law and constitutional right of trial by jury, further than would result from a wholesome regulation of the system, and should not, by too liberal construction, be extended beyond the legitimate objects to be accomplished; that if at a preceding term a jury had been waived...

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    ...latitude to ascertain the accuracy of the knowledge and judgment of the witness upon which the witness' opinion was based. Brown v. Chenoworth, 51 Tex. 469, 478; Texas Law of Evidence by McCormick & Ray, p. 364, 365; Evansich v. Gulf, C. & S. F. Ry. Co., 61 Tex. 24; Denton v. English, Tex.C......
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  • Davis v. Morrison
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