Cato v. Jeffreys

• Decision Date: 18 May 1932
• Docket Number: No. 3819.,3819.
• Citation: 50 S.W.2d 413
• Parties: CATO et al. v. JEFFREYS.
• Court: Texas Court of Appeals

50 S.W.2d 413

CATO et al. v. JEFFREYS.

No. 3819.

Court of Civil Appeals of Texas. Amarillo.

May 18, 1932.

Appeal from Lynn County Court; G. C. Grider, Judge.

Suit by Ivan V. Cato and others against L. P. Jeffreys. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded.

Pardue & Harrelson, of Lubbock, for appellants.

B. P. Maddox, of Tahoka, for appellee.

MARTIN, J.

Appellants brought suit against appellee as indorser on five promissory notes. Each of these notes contains the following clause: "We, the makers, sureties, guarantors and endorsers severally waive presentment for payment, protest and notice of protest and non-payment of this note."

Appellants' second amended original petition sets out these notes in hæc verba, and in addition they specially pleaded that presentment for payment and protest had been expressly waived by defendant. During the trial of the case, appellants offered to prove the cause of action pleaded by the introduction of the said notes, to which an objection was interposed, "for the reason that there was no evidence showing that said notes were ever presented for payment." This objection was sustained, and, plaintiffs being without evidence to sustain the cause of action pleaded, a judgment was entered by the trial court for the defendant, from which judgment this appeal was prosecuted.

The action of the court in refusing to admit the said notes in evidence is the only error brought forward in the record which we think is necessary to decide on this appeal.

The waiver above recited was embodied in the instruments themselves, and was binding upon the indorser, appellee herein. Article 5938, § 110, R. S. 1925; Sowell v. Federal Reserve Bank, 268 U. S. 449, 45 S. Ct. 528, 69 L. Ed. 1041.

While an indorser is only secondarily or contingently liable, and this liability must be shown by allegation and proof of the existence of certain facts prescribed by law, these conditions precedent to fix liability may be waived. Article 5937, § 82, R. S. 1925; Wardlaw v. Farmers' & Merchants' Bank Co. (Tex. Civ. App.) 34 S.W.(2d) 419.

The very matters urged as an objection to the admissibility of the notes in question shows both in appellants' pleading and in the face of the notes to have been expressly waived. It could not, therefore, have been necessary for the plaintiff to make proof of that which the defendant by his contract had waived and made unnecessary. It is argued by appellee in his brief that, since the...