Burke v. Ward

• Decision Date: 20 November 1895
• Parties: BURKE v. WARD.
• Court: Texas Court of Appeals

32 S.W. 1047

BURKE v. WARD.

Court of Civil Appeals of Texas.

November 20, 1895.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by Sallie M. Ward against John J. Burke and another on a promissory note. Plaintiff had judgment, and defendant Burke appeals. Reversed.

John A. Green, Jr., for appellant. McLeary & Stayton, for appellee.

FLY, J.

It is alleged in the petition that, on March 25, 1892, John T. Bivens executed and delivered to appellant, John J. Burke, a certain promissory note in writing for $1,400, due on November 10, 1893, with interest at the rate of 10 per cent. per annum from maturity, and 10 per cent. for attorney's fees in case of legal proceedings, and that said note was given for part of the purchase money of certain land conveyed to Bivens by Burke. It was further alleged that, on November 25, 1893, Burke, for a valuable consideration, transferred and assigned the note, waiving protest, to J. Ward, at the same time conveying to him the superior title to the land, and that, on January 31, 1895, J. Ward transferred the note to appellee Sallie M. Ward. Copies of the deeds referred to were attached as exhibits to the petition. The petition was excepted to because it showed that Burke was an indorser on the note, and was not sued at the first term of the court after the same became due, and because the substance of the exhibits was not set out in the petition. It was answered that, if the note was transferred by Burke to J. Ward, it was done after maturity of the same, and that appellant did not guaranty the payment of the note, and that due diligence had not been used to collect the note. Sallie M. Ward brought the suit against Bivens, the maker, and Burke, the indorser, of the note. Bivens made no appearance, and judgment by default was taken against him. The cause was tried without a jury, and judgment was rendered against Burke as prayed for in the petition. John J. Burke has perfected an appeal to this court.

It was stipulated in the note that it should not be negotiable until the day it was due, which had the effect of rendering it a nonnegotiable instrument; but, had it been negotiable up to maturity, it was not transferred until after, and the rules as to nonnegotiable instruments must obtain. There is prescribed but one method by which the liability of the assignor of a nonnegotiable note can be fixed by law, and that is by using due diligence to collect the same. Sayles' Civ. St. art. 267. What is...