Campbell v. Jones

• Decision Date: 02 February 1893
• Citation: 21 S.W. 723
• Parties: CAMPBELL v. JONES.
• Court: Texas Court of Appeals

21 S.W. 723

CAMPBELL v. JONES.

Court of Civil Appeals of Texas.

February 2, 1893.

Appeal from Cherokee county court; Frank B. Guinn, Judge.

Action by S. E. Jones against James A. Campbell. Judgment for plaintiff. Defendant appeals. Reversed.

McClure & Gibson, for appellant. Willson & Willson, for appellee.

GARRETT, C. J.

This suit was brought by the appellee, S. E. Jones, in the county court of Cherokee county, against the appellant, James A. Campbell, on a promissory note executed by Campbell, payable to Kirby & Jones, a firm of retail liquor dealers doing business in the town of Jacksonville, in said county. Plaintiff claimed to be a holder of said note by indorsement before maturity for value, and without notice of any defense thereto against the original payees. Defendant admitted the execution of the note, but pleaded in bar thereof that it was void because it was executed in consideration of intoxicating liquors sold to the defendant by the said Kirby & Jones, in violation of the conditions of the bond executed by them as licensed retail liquor dealers, that they would not sell any intoxicating liquor to an habitual drunkard, nor to any person after having received notice from the wife, mother, sister, or daughter not to sell such person intoxicating liquor. In the charge the court defined the term "habitual drunkard," as defined in Rev. St. art. 2473, of the title on "Guardian and Ward," as "one whose mind has become so impaired by the use of intoxicating liquors or drugs that he is incapable of taking care of himself or property." This was error. The definition in the statute relating to guardianship is for the purpose of determining when a guardian of the person and estate shall be appointed, and does not apply to the meaning of the term as used in the statute providing for the execution of a bond by persons obtaining license as retail liquor dealers. Sayles' Ann. St. art. 3226a, § 4. It is here used in its common acceptation, and the capacity of a person to take care of himself or property is not in issue, and is immaterial. The jury must determine, from the common understanding of the term, as to whether or not the person is an habitual drunkard. Trigg v. State, 49 Tex. 676; Tatum v. State, 63 Ala. 152; State v. Pratt, 34 Vt. 324.

If the plaintiff, S. E. Jones, is a holder of the note in good faith for value, and received it in the usual course of business, he is unaffected by the fact that it was executed for an illegal consideration. 1 Daniel, Neg. Inst. § 197. When the act out of which the consideration arises has been expressly prohibited by statute, under a penalty, the defense has been held to apply to an innocent holder of the note, as in the case of usury. Our supreme court has held that a note given for usurious interest is void, even in the hands of an innocent holder. Andrews v. Hoxie, 5 Tex. 171. But in this case there is no direct prohibition of the sale of intoxicating liquors to an habitual drunkard, or to a person after notice as provided by law, nor is there any declaration that a note given in consideration of such sales shall be void. 1 Daniel, Neg. Inst. §§ 197-199. The cases cited by appellant treat the instrument as void only as between the parties. Monroe v. Smelly, 25 Tex. 586, was a suit on a note given for money won at a game called "Tenpins." The note was given to Hale by Smelly, and transferred to Monroe after maturity. Seeligson v. Lewis, 65 Tex. 215, grew out of a "cotton futures" contract,...