Brown v. Weir

• Decision Date: 01 April 1927
• Docket Number: (No. 274.)
• Citation: 293 S.W. 916
• Parties: BROWN et al. v. WEIR.
• Court: Texas Court of Appeals

293 S.W. 916

BROWN et al. v. WEIR.

(No. 274.)

Court of Civil Appeals of Texas. Eastland.

April 1, 1927.

Rehearing Denied May 5, 1927.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Suit by F. A. Brown and others, trustees of the First Baptist Church of Ranger, Tex., against A. K. Weir. Judgment for defendant, and from the overruling of a motion for new trial, plaintiffs appeal. Reversed and remanded.

L. R. Pearson, of Ranger, and Funderburk & Richardson, of Eastland, for appellants.

Patterson & Grantham, of Ciseo, for appellee.

LESLIE, J.

This is a suit by F. A. Brown and others, trustees of the First Baptist Church of Ranger, Tex., against A. K. Weir on four promissory notes, each for the sum of $125, dated December 13, 1920, due respectively January 1, 1922, 1923, 1924, and 1925, each payable to the First Baptist Church of Ranger, Tex., or order, and each reciting "for value received" and stipulating for interest at the rate of 6 per cent. per annum from January 1, 1921, and containing the usual provision for attorney's fees.

Defendant pleaded general denial and specially pleaded defenses of: (a) Want of consideration; (b) estoppel; and (c) release from liability.

At the close of the testimony plaintiffs requested a peremptory instruction in their favor, which was refused, and the court thereupon submitted the following special issues to the jury:

"Special issue No. 1. Were the notes sued upon given by the defendant for the exclusive purpose of aiding in the liquidation of a then existing debt against the First Baptist Church of Ranger, Tex.?

"Special issue No. 2. Were the notes sued upon given by the defendant for the purpose of being applied upon the completion of the building of the First Baptist Church of Ranger, Tex.?

"Special Issue No. 3. Were the notes sued upon given by the defendant for both the purposes of aiding in the liquidation of a then existing debt and for further aiding in the completion of the building of the First Baptist Church of Ranger, Tex.?"

The jury answered "Yes" to the first issue and "No" to the second and third.

Plaintiffs filed a motion for judgment, notwithstanding the verdict of the jury, and the defendant filed a motion for judgment in his favor, and the court, upon consideration of the motions filed, rendered a judgment in favor of the defendant. From the overruling of the motion for a new trial and upon notice of appeal given, the judgment of the trial court and the proceedings therein are before this court for review.

There are three assignments of error, the first complaining of the action of the trial court in refusing to peremptorily instruct a verdict in favor of the plaintiffs; second, because the defendant, under his plea of lack of consideration for the notes, failed to discharge the burden of proof to show nonconsideration; and, third, complaint is made of the action of the court in placing upon the plaintiffs the burden of proof to show the affirmative of the issues 2 and 3, since said issues were material merely on the issue of consideration, the burden of establishing the nonexistence of which was upon the defendant. Subdivisions (b), (c), and (d) of the second assignment advanced the proposition that the undisputed testimony of the record in fact shows a consideration valid in law to support the notes, thus authorizing a judgment for plaintiffs.

"Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration. * * *" Section 24, art. 5933, Vernon's A. T. Statute.

"An antecedent or pre-existing debt constitutes value. * * *" Section 25, Id.

The promissory notes in controversy purport upon their face to have been given for a valuable consideration, but under the statute, all such written instruments import a consideration. Under the statute, the consideration for a written instrument can only be impeached by a sworn plea. Article 2010, subd. 10, same statute. Such a plea was interposed in the instant case. The notes importing a consideration, the burden was upon the defendant to show that there was none. The sworn plea did not shift the burden of proof to the plaintiff, but merely put the matter of consideration in issue with the burden of proof resting upon the defendant, appellee herein, to establish by a preponderance of the evidence a lack of consideration for the notes. Newton et al. v. Newton, 77 Tex. 508, 14 S. W. 157.

The introduction of the notes in evidence made out a prima facie case in favor of the plaintiffs and entitled them to a judgment which would be defeated by the defendant's establishing the nonexistence of consideration for the notes. The assignments assail the sufficiency of the defendant's testimony to establish the nonexistence of the consideration, and it becomes necessary to review the testimony generally and especially the appellee's testimony. In substance and so far as material, the appellee's testimony was as follows:

"I was a member of that church (the First Baptist Church of Ranger) at the time of the commencing of the present church building for that church. * * * I was one of the deacons and chairman of the mission board. * * * In the erection of that church building, I have been one of the officers and have been a trustee of the church and had a part in all of its transactions. I was active on the building program and building of the church. * * * I had gone on one note to the mission board for $10,000. I went to Dallas and went on another note for $4,000. * * * The $500 in notes they hold here now was a pledge that was put into the form of a note. After the church was finished we called George Truett out from Dallas to dedicate the church. At that time we owed $24,000, and this was a collection to liquidate that $24,000 that was still on the church. Of that $24,000 we owed $10,000 to the home mission board and $5,000 or $6,000, possibly $7,000, to ____ and the bank $2,000. After the church was completed and we started to dedicate it, we owed $24,000 on the church. The hope was that we dedicate the church and that it be free of debt. This pledge was to pay off indebtedness already against the church. My recollection is that we owed the $24,000 and wanted to dedicate the church, and it is the custom among Baptist people, as I understand, that we don't dedicate a church till the indebtedness is cleared, and we had called George Truett to preach the dedicatory sermon, and my recollection is that we owed $24,000, and there was pledged at that meeting that day a little better than $25,000 for the purpose of liquidating this indebtedness, this borrowed money at the bank. We had borrowed from the mission board and the bank while the building was under construction, * * * and this pledge was to liquidate the indebtedness against the building. My recollection is that I pledged at this time $500 and put it into four notes. * * * I had been loaning my credit and making notes, and afterwards they presented notes to some of us to sign and to help the finances of the church. I signed these notes, and I supposed they would be used at that time I gave them. * * * At the time I gave the notes involved here, I gave $500 and divided it into four notes. * * * I was on $12,000 worth of notes. * * * I think it is conceded among us that all members of the church are responsible for the church's welfare, spiritually and financially and in every way. * * * The debts that have been incurred for the building of the church might have been incurred since the time these notes were executed. That day we owed this $24,000, and we took that public offering to pay off that indebtedness. * * * As to what officers of the church incurred this $24,000 indebtedness, there was a gob of us that signed it. Any member of the church who was financially responsible. When we borrowed the $10,000 from the home mission board, they sent us a questionaire of what we were worth over what the law allowed us, and they picked out eight men to sign those notes. During the time the church was being built and those debts incurred, we had a building committee. * * * I think I was a member of that committee. I was connected with all the church's finances. It is possible I might have been a member of its finance committee at the time of the construction of this church. * * * When we took the collection, it was the intention of the church that this indebtedness be paid. * * * I was in favor of paying the church debt at that time. It was for the purpose of paying the church debt that I executed the notes involved in this suit. That was my contribution toward the payment of the debt that had already been incurred. I, as a trustee of the church and as a deacon of the church, had had my part in the incurring of this indebtedness. and in executing these notes I was taking upon myself individually the burden of paying that much of the total debt of the church. I wanted to carry my part of the $24,000. That was my intention when I pledged it, to carry my part. I felt obligated at that time...