City Nat. Bank v. Pope

• Decision Date: 19 March 1924
• Docket Number: (No. 7111.)
• Citation: 260 S.W. 903
• Parties: CITY NAT. BANK OF CORPUS CHRISTI v. POPE.
• Court: Texas Court of Appeals

260 S.W. 903

CITY NAT. BANK OF CORPUS CHRISTI v. POPE.

(No. 7111.)

Court of Civil Appeals of Texas. San Antonio.

March 19, 1924.

Rehearing Denied April 16, 1924.

Appeal from Nueces County Court; H. R. Sutherland, Judge.

Action by the City National Bank of Corpus Christi against W. E. Pope. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

E. B. Ward, of Corpus Christi, for appellant.

Boone & Savage, of Corpus Christi, for appellee.

SMITH, J.

The bank brought this action against Pope to recover a balance of $510, alleged to be due upon a promissory note executed by the Democrat Publishing Company and Pope and others, for the sum of $3,750, dated November 24, 1915, and payable to the bank on or before April 18, 1923. This note and another for $3,500 were secured by a certain collateral note for $7,250, executed on October 18, 1915, by W. F. Baum and E. G. Crabbe, and payable to the Democrat Publishing Company in 14 installments, the first installment of $750, being payable one year after date, and the remaining 13, of $500 each, being payable semiannually thereafter. It was provided in the note sued on that the installments provided for in the collateral note should all be applied as collected to the payment of the $3,500, until the latter was paid (which would be on October 18, 1919), after which the installments should be applied as collected to the payment of the note here sued on. So was it also provided in the note sued on that it should be paid "in installments to correspond with" the collateral note, that is to say, in semiannual installments of $500 each, beginning at the completion of the payment by the same process of the $3,500 note. It was further provided in the note sued on that in event of default "in the payment of interest or principal, or any installment of principal, or any part thereof when due, this note upon such default being made, * * * at the option of the holder or payee hereof, shall immediately mature and become collectible." After providing for the payment of 10 per cent. attorney's fees in event the note is "matured as herein provided," or suit is brought thereon, etc., the note contained the further stipulation that "all sureties, indorsers, and guarantors hereof hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest and diligence in bringing suit against any party thereto; and they, and each of them, also agree that the time of payment may be extended from time to time by the payee or holder of this note without further notice."

Upon a trial before the court without a jury judgment was rendered in favor of Pope, denying the bank any recovery upon the note upon two grounds: First, that the bank's cause of action was barred by limitation; and, second, that Pope was merely a surety on the note, and the bank as holder did not exercise diligence in bringing suit after default, or in taking other steps to collect.

No statement of facts accompanies the record, but the court filed rather full findings of fact, and in this state of the record we will not be permitted to presume the existence of any other fact than those so found to support the correctness of the judgment. We can look no further than the facts affirmatively found and reduced to writing by the trial court, by which alone the correctness of the conclusions of law must be tested. Kimball v. Oil Co., 100 Tex. 336, 99 S. W. 852; Ridgway v. Fort Worth (Tex. Civ. App.) 243 S. W. 740.

The court found as a fact that because of default in partial payments the bank, on December 8, 1917, exercised its option to mature the entire obligation. This finding is based alone upon a letter written by the bank on said date to Pope and others obligated with him, and set out in the findings. The court held as a matter of law that in so exercising its option to mature the whole obligation the bank's cause of action at that time fully accrued, and that, as it did not institute suit until more than four years later, the cause was barred by the appropriate statute. There is some doubt as to whether or not the letter...