Canyon Loan Co. v. Gamble

• Decision Date: 08 March 1937
• Docket Number: No. 4711.,4711.
• Citation: 105 S.W.2d 272
• Parties: CANYON LOAN CO. et al. v. GAMBLE.
• Court: Texas Court of Appeals

105 S.W.2d 272

CANYON LOAN CO. et al. v. GAMBLE.

No. 4711.

Court of Civil Appeals of Texas. Amarillo.

March 8, 1937.

Rehearing Denied May 10, 1937.

Appeal from District Court, Randall County; E. C. Nelson, Jr., Judge.

Action by J. B. Gamble, administrator of the estate of Tom Davies, deceased, against the Canyon Loan Company and another, in which the First National Bank in Canyon intervened. From a judgment for plaintiff against named defendant and intervener, they appeal.

Affirmed.

H. H. Cooper, of Amarillo, for appellants.

Sanders & Scott, of Amarillo, for appellee.

JACKSON, Justice.

On July 11, 1935, J. B. Gamble, appellee, as administrator of the estate of Tom Davies, deceased, instituted this suit in the district court of Randall county against the Canyon Loan Company to recover the sum of $10,000, with interest, evidenced by note dated January 6, 1929, payable to Tom Davies one year after date, bearing interest at the rate of 7 per cent. per annum, payable semiannually. He also sought to foreclose a deed of trust lien on lot 2 in block No. 42 in the town of Canyon against the Canyon Loan Company and the First National Bank of Canyon.

In addition to the usual allegations to recover on the note and foreclose the lien, the appellee pleaded an express agreement and an implied agreement for the extension of the due date of the indebtedness; a new promise which he asserted defeated the bar of the statute of limitation; set up estoppel against limitation, and in a trial amendment pleaded that on or about September 21, 1934, the Canyon Loan Company acknowledged in writing the justness of the debt.

The First National Bank of Canyon disclaimed.

The Canyon Loan Company answered by numerous exceptions; pleaded general denial, four-year limitation against the note, and two-year limitation against any renewal or any acknowledgment of the justness of the debt, alleging if any such agreement or acknowledgment was made, it was oral and not in writing.

The First National Bank in Canyon, hereinafter called intervener, intervened in the suit alleging that it was a national banking corporation authorized to begin business on April 5, 1934, and said that on the day it opened for business intervener purchased from the First National Bank of Canyon one note dated November 13, 1929, given by the Canyon Loan Company for the sum of $5,000, and payable to the order of the First National Bank of Canyon; that on December 12, 1934, the note was properly renewed, and to secure the payment thereof, the Canyon Loan Company executed and delivered to intervener a deed of trust on certain real estate, including lot No. 2 in block No. 42, in the town of Canyon; that the appellee's deed of trust was never placed of record; intervener had no notice, either actual or constructive, of such lien and is an innocent purchaser with a superior lien which it asks to be foreclosed.

At the close of the testimony, the court peremptorily instructed the jury to return a verdict in favor of appellee. Judgment was rendered that he recover of the Canyon Loan Company the sum of $12,133, the principal, interest, and attorneys' fees on the note; the lien in favor of Tom Davies was adjudged superior to the lien claimed by the intervener, and foreclosed on the property involved; ordered the issuance of an order of sale; directed the lot sold as under execution and intervener take nothing by his suit.

The Canyon Loan Company and the intervener, prosecute separate appeals.

The Canyon Loan Company predicates its appeal on two propositions; first, that the testimony fails to show that W. C. Black had authority to sign the name of the Canyon Loan Company to the checks and make the notations thereon; second, that the testimony does not show an acknowledgment of the debt in writing sufficient to toll the statute of limitation under article 5539 of the Revised Civil Statutes.

The record discloses that some time prior to the transaction here involved, the National Bank Examiner condemned certain real estate and notes held as assets by the First National Bank of Canyon and demanded the removal of such real estate and notes from the assets of said bank. To comply with this ruling, the Canyon Loan Company was incorporated with a capital stock of $50,000, and such condemned assets transferred to said loan company. The directors and officers of the loan company, as indicated by the record, were identical with the officers and directors of the First National Bank. Oscar Hunt, a director, a member of the loan committee, and the vice president of said bank, became the president of the Canyon Loan Company and has since held such position continuously. O. W. H. Cook, also the vice president, a director and stockholder in the bank, was a stockholder in and was elected secretary-treasurer of the Canyon Loan Company. This position he held until some time in 1929 when he was succeeded by W. C. Black, the cashier and a director of said bank.

The First National Bank of Canyon and the First State Bank of Canyon were consolidated and began business on April 5, 1934, under the name of the First National Bank in Canyon, and this new institution acquired the assets and succeeded to the business and assumed the liabilities to the depositors of the First National Bank of Canyon. The directors and officers of the Canyon Loan Company, after such consolidation, and the directors and officers of intervener were identical, except two who came to intervener from the First State Bank of Canyon.

On February 6, 1929, the directors of the Canyon Loan Company, by resolution, authorized Oscar Hunt, its president, to borrow from Tom Davies for one year the sum of $10,000, bearing interest at the rate of 7 per cent. per annum, payable semiannually, and to pledge as collateral for such loan such assets of the Canyon Loan Company as were required.

In compliance with this authority and said resolution, the Canyon Loan Company by its president executed to Tom Davies a note of even date with the resolution for the sum of $10,000, payable in one year, at the office of the First National Bank of Canyon; contemporaneously with the note the president also signed and delivered to Mr. Davies a deed of trust on lot 2, in block 42, in the town of Canyon to secure the payment of the note.

On November 20, 1934, Tom Davies was adjudged insane and on February 2, 1935, died, and J. B. Gamble was legally appointed and duly qualified as the administrator of the estate of said deceased.

The Canyon Loan Company maintained its place of business in the First National Bank of Canyon until the consolidation with the First State Bank, and thereafter maintained its place of business in the First National Bank in Canyon.

Mr. Hunt testified that the note and deed of trust were executed and delivered to Tom Davies and placed in his lock box in the First National Bank of Canyon; that "the interest was kept paid up on this $10,000.00 note as it fell due, each six months, until 1934 * * * Semi-annually * * * from the time it was made in 1929 until the middle of 1934. * * * Every time Tom Davies would come in there he would say, `I want that interest', and I would tell the boys up there to pay him. These semi-annual payments were made by my authority and at my direction. * * *

"My testimony is that the interest was paid in that way until the note fell due; and when the note fell due, that the principal was not paid but the interest was paid and the principal carried for six months, and the interest was paid again, and then the interest was paid for six months again and the interest paid again, and so on, up to August, 1934. * * * This last check was dated September 21, 1934."

Mr. W. C. Black testified that he had no stock in the Canyon Loan Company, but became secretary-treasurer thereof in 1929, succeeding O. W. H. Cook; that he gave the checks for the payment of the semiannual interest on the $10,000 note to Mr. Davies, who indorsed and deposited them in the First National Bank, and each of them were paid; that "I was told by the Canyon Loan Company officers and by Mr. Hunt particularly that I should pay this interest. * * * Mr. Hunt would tell me in substance to pay Tom Davies the interest on his $10,000.00 note. * * * All of these checks, except the one dated August 7th, are in my handwriting. * * * The notations `Int.,' `Int. on Note', and `Int. on Loan' meant interest on the $10,000.00 note."

The first interest check, excepting some immaterial numbers and letters, is for the amount of the semiannual interest, and is as follows:

"The First National Bank, Canyon, Texas, 8/7 1929 Pay to the Order of Tom Davies Three Hundred Fifty and No/100 Dollars ($350.00)

                              "Canyon Loan Company
                                    "Oscar Hunt."
                

Each of the other interest checks is drawn on the same bank, for the same amount, and dated on or near the next succeeding semiannual interest payment date, and signed, "Canyon Loan Company, W. C. Black." The check dated February 8, 1930, has noted in the left-hand corner, "Int." The check dated June 15, 1933, has noted in the left-hand corner, "Int. on Loan," and the last check given is as follows:

"Canyon, Texas, September 21, 1934 Pay to the order of Tom Davies ...... $350.00 Three Hundred Fifty and No/100 ...... Dollars

                                Canyon Loan Company
                Int. on Note       By W. C. Black."
                

Mr. Black testified the notations "Int.," "Int. on Loan," and "Int. on Note" were in his handwriting and meant interest on the $10,000 note which had been given by the Canyon Loan Company to Tom Davies. So far as this record reveals, during the years no one questioned the authority of Mr. Black to issue the checks of the Canyon Loan Company, make the notations appearing thereon, and pay the interest on said note. Such authority is not challenged in the pleading, Miles Realty Co. v. Dodson (Tex.Civ.App.) 8 S.W.(2d) 516, 521, but had it been, the testimony is uncontroverted that he acted by...