Burleson v. Morse

• Decision Date: 27 May 1943
• Docket Number: No. 11539.,11539.
• Citation: 172 S.W.2d 361
• Parties: BURLESON v. MORSE.
• Court: Texas Court of Appeals

172 S.W.2d 361

BURLESON v. MORSE.

No. 11539.

Court of Civil Appeals of Texas. Galveston.

May 27, 1943.

Rehearing Denied June 17, 1943.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Action by B. L. Morse against May Walker Burleson on three notes. From a judgment for plaintiff, defendant appeals.

Affirmed.

Harris & Coltzer and George W. Coltzer, all of Galveston, and Albert J. De Lange, Frank A. Stamper, and Robert P. Beman, Jr., all of Houston, for appellant.

Markwell & Stubbs and Henry W. Flagg, all of Galveston, for appellee.

GRAVES, Justice.

This appeal is from an $8,255 judgment in appellee's favor against appellant, as the sum found to be due upon her three promissory notes to him for $2,500 each, entered by the 10th District Court of Galveston, County, partly in response to a jury's findings on special issues submitted and partly upon independent findings of the court itself from the pleadings and evidence.

Appellant inveighs here against such adverse determination to herself through 34 points, which may be consolidated into these groups:

(1) The court erred in a number of particulars in its submission to the jury of the issue of whether or not the appellant had sufficient mental capacity to execute such three notes as attorney's fees, for and in consideration of his having so represented her in her trial for murder in a South Carolina court, which she was shown to have signed while an inmate of the Woman's Penitentiary at Columbia, South Carolina, following her conviction for manslaughter at such trial;

(2) The court erred in many of its rulings upon the evidence during such trial, towit, in admitting the holding of the Commission of South Carolina as to the sanity of the appellant, as well as in receiving the non-expert testimony as to her mental capacity of the witnesses, Savage and Sapp, along with that on the same subject of the witness, Dr. Harris, as a qualified expert witness; especially in association with its further erroneous admission of copies of other instruments than these notes in suit— such as deeds of trust purportedly securing borrowed money from Texas banks, without proof of the instruments, or the circumstances of the transactions evidenced thereby;

(3) The court erred in excluding the testimony of the appellant herself respecting her mental condition, and that tending to show the appellee's knowledge of the conditions she would have adduced.

(4) The court improperly and inadequately submitted the issue of whether or not the appellant was under duress, at the time of and in having executed the three notes in suit, as she so did;

(5) The issue respecting the value of appellee's services to appellant, including the related one of whether or not the aggregate amount of three notes constituted a reasonable attorney's fee in the circumstances, as well as whether or not they had been executed upon specified representations of the appellee, were likewise erroneously submitted.

(6) The three notes sued upon were usurious, in that they were dated June 1 of 1940, carrying 6% interest per annum from date and payable on or before 60, 90, and 120 days after date, respectively, but they were not actually executed until August 1 of 1940;

(7) There was no competent evidence before the court of the reasonable value of the services as an attorney rendered by the appellee to appellant, in that the court improperly admitted the testimony of the appellee himself touching that inquiry, as well as that of his witnesses, Kenyon and Sapp;

(8) The appellee's declared-upon legal services were "illegal", in that they were in part for legal services in South Carolina and in its courts, in which State appellee was not shown to have been licensed to practice law.

While perhaps not embracing all of appellant's detailed presentments, the given summary is thought to at least cover the controlling ones of them.

After careful examination of the extended record, under the light of able briefs and oral arguments for both sides, it is concluded that none of her assignments present reversible error, in view of the state of the proceedings, as brought here.

As presaged, the suit was brought by the appellee against the appellant as a simple one to enforce and collect the balance due on the three $2,500 promissory negotiable notes declared upon. She, by answer, as a sole defense on the facts, declared that "On information and belief, she did not have capacity to make, execute, and deliver the notes, either at the date thereof, or at the date of the alleged delivery thereof, or at any other relevant time."

There were added averments to the effect that the appellee, having been her attorney at the date of the notes, stood in a fiduciary capacity in any legal services he may have rendered her that formed the basis for the signing of them in the form declared upon by him, and that he was then and there well aware of her stated mental and nervous condition; that while so serving as her attorney and occupying such position of trust toward her, and while she was still in prison in South Carolina, she had been put under a state of duress in the matter of the execution of such notes, and that they had been in fact signed—to use her own averment —"upon the insistence of plaintiff that said notes be signed in said amount, such statements being made by him at a time when defendant was in prison when the aforesaid trial and appeal was imminent and required, and when said defendant was under such duress and coercion."

Whereupon, following an extended trial on the merits, the court submitted what it deemed to be the controlling issues of fact raised by the pleadings and evidence to a jury in some six inquiries, including those, (1) as to whether or not the appellant had had sufficient mental capacity to execute the sued-upon notes at the date thereof, (2) whether the appellee had obtained them through duress exercised by him against appellant, (3) as well as whether he had then stood in the fiduciary relationship of attorney toward her, and (4) whether he had misinformed her as to the value of the legal services rendered by him for her in connection with the case against her in South Carolina, (5) what did the jury find to be a reasonable fee to the appellee for the services he rendered the appellant in connection with that case against her, and (6) "as part of consideration for the notes sued upon, had the said plaintiff advised or condoned the shooting by the defendant of Mrs. Burleson?"

The jury answered all these inquiries in the appellee's favor, to the effect that appellant did have such mental capacity, that appellee did not obtain the notes from her through the exercise by him of any duress against her, that he had not misinformed her as to the value of the legal services he had rendered her, and that he had neither advised nor condoned the shooting by her of Mrs. Burleson, who was the second wife of her own former husband.

The judgment, as indicated, followed with the addition of further findings, as recited therein, by the court independently of the verdict.

This court finds no fault with the form of the submission of the question raised as to appellant's mental capacity to execute the notes in suit—it having been a simple inquiry as to whether she had "sufficient mental capacity to execute said notes", followed by the definition: "By the term `mental capacity' is meant the possession of sufficient mind and memory to understand the nature and effect of her act in executing the notes inquired about."

Since the burden was plainly on appellant as the maker thereof to establish her sole defense of a lack of mental capacity at the date thereof to execute the notes, the trial court submitted the matter in the approved form. 10 Tex.Jur. 60; Smith v. Thornhill, Tex.Com.App., 34 S.W.2d 803...