Connor v. Uvalde Nat. Bank
Decision Date | 07 May 1913 |
Citation | 156 S.W. 1092 |
Parties | CONNOR v. UVALDE NAT. BANK et al. |
Court | Texas Court of Appeals |
Appeal from Uvalde County Court; J. F. Robinson, Judge.
Action by the Uvalde National Bank against M. Connor and others. From a judgment entered on a verdict directed for plaintiff, defendants appeal. Reversed and remanded.
Jno. W. Hill, of Uvalde, and T. H. Ridgeway, of San Antonio, for appellants. W. D. Love, L. Old, and L. E. Lanier, all of Uvalde, for appellee.
The Uvalde National Bank sued F. E. Seawell, M. Connor, and J. J. H. Patterson upon a promissory note for $815, alleging that the note was a joint and several obligation, and that Connor's name was signed thereto by Seawell, who was duly authorized to sign said Connor's name thereto. Connor filed a plea of non est factum, a general demurrer, and general denial. Patterson admitted the execution of the note and prayed for judgment over against Seawell for any amount he might have to pay, and also for contribution over against Connor. Connor also filed a plea for judgment against Patterson for half of any amount that Connor might have to pay in the event it was decided that he was a surety upon the note. Upon the trial, the court instructed a verdict in favor of plaintiff against all the defendants for the full amount of the note, with interest and attorney's fees, and for defendants Connor and Patterson over against Seawell, and for each of said two defendants against the other for judgments of contribution. Upon the return of the verdict according to the instruction given by the court, judgment was entered accordingly, from which Connor appealed.
Summary of Evidence.
Defendant Seawell testified as follows: On cross-examination he testified: The promissory note sued upon was for $815, dated March 15, 1911, due 90 days after date, bearing 10 per cent. interest from maturity, and providing for 10 per cent. attorney's fees if placed in the hands of attorneys for collection after maturity. It was payable to plaintiff's order, was a joint and several note, with the names F. E. Seawell, J. J. H. Patterson, and M. Connor, per Seawell, signed thereto. The note was placed in the hands of attorneys for collection after maturity upon an agreement to pay them the 10 per cent. attorney's fees provided for in the note as their fee for collecting the note.
Defendant Connor testified on direct examination as follows: The note sued upon was then handed to the witness and he said: On cross-examination he said: "Yes, it is a fact that I gave Mr. Seawell authority to sign my name to a note, and when he came down there in the field there was nothing said about the amount, terms, interest, or condition; just authorized him to sign my name to a note, and that was all there was to it."
Conclusions of Law.
By plea of non est factum Connor denied that he executed the note described in the petition, and also denied that it was executed by any person authorized by him to sign or execute the same for him. Thereupon the burden rested upon plaintiff of showing the authority of Seawell to sign Connor's name to the particular note sued upon, as well as the fact that he did actually sign such name thereto. Brashear v. Martin, 25 Tex. 202; Neil v. Schackelford, 45 Tex. 131; City of Tyler v. Adams, 62 S. W. 119; Clymer v. Terry, 50 Tex. Civ. App. 300, 109 S. W. 1130. As was said by Judge Neill in the case of Baker v. Machinery Co., 84 S. W. 662: "Persons dealing with an assumed agent, whether the assumed agent be a general or a special one, are bound, at their peril, to ascertain not only the fact of the agency, but the extent of his authority; and, in case either is controverted, the burden of proof is upon them to establish it." See, also, Mechem on Agency, §§ 706, 707; Buzard v. Jolly (Sup.) 6 S. W. 422; Sackville v. Storey, 149 S. W. 241; Machinery Co. v. Peter & Sherrill, 84 Tex. 627, 19 S. W. 860. In this case it was the duty of plaintiff to ascertain, at its peril, whether Seawell had authority to sign Connor's name to the note it accepted, and, when it sued upon such note and the authority of Seawell to execute the note for Connor was denied under oath, the burden rested upon plaintiff of showing such authority, and it could not meet such burden by proof of authority to execute a note different from the one sued upon.
Authority to sign a person's name to a note as surety does not...
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