Couch v. Babb, 6884
| Decision Date | 11 January 1968 |
| Docket Number | No. 6884,6884 |
| Citation | 423 S.W.2d 464 |
| Parties | O. Dean COUCH, Jr., d/b/a Couch Mortgage Company, Appellant, v. Leslie BABB and wife, Beatrice Babb, Mrs. R. L. Thornton, and Hartford Accident and Indemnity Company, Appellees. . Beaumont |
| Court | Texas Court of Appeals |
Robert H. Fisher, Houston, for appellant.
Coker & Coker, Conroe, for appellees.
Plaintiff, Leslie Babb and wife, brought suit against O. Dean Couch, dba Couch Mortgage Company, and other defendants, for cancellation of a mechanic's and materialmen's lien and deed of trust upon their homestead. Judgment consistent with their pleadings was entered in favor of plaintiffs by the court sitting without a jury. On this appeal, Couch complains of the failure of the trial court to enter judgment consistent with his cross-action. By said cross-action, he sought to recover the face amount of a $2,997.00 promissory note which had been executed by the Babbs evidencing the lien. The judgment only allowed Couch recovery against the Babbs in the amount paid for the note which was $2,096.25. This was error. The note matured November 9, 1964. In the first count of his cross-petition, Couch sought recovery against the makers of the negotiable promissory note, alleging the face amount of $2,997.00 and the balance owing which was $2,997.00. The pleading filed in answer to the cross-petition was an unverified general denial. Leslie Babb admitted execution of the note, and agreement to pay $2,997.00 for the labor and material described in the contract, and his subsequent refusal to pay the said sum.
Every note holder is deemed a holder in due course and no evidence was presented to assail Couch's position as a holder in due course on the note sued upon. As stated by the Supreme Court in Southwestern Fire & Casualty Company v. Larue, Tex., 367 S.W.2d 162:
Since the execution of the note and its endorsement were not in issue and since the burden was upon Larue to establish payment on the note, the trial court did not err in overruling Larue's special exception which would have required the company to show what payments had been made and when.
Nor do the allegations of the company's petition create an ambiguity or an issue of fact. It alleged the face amount of the note and the amount which was due on the note. The company could recover no more than the amount sued for, and the burden was upon Larue to prove payment or release of any further sums.
Since the Babbs admitted executing the note, agreeing to pay the debt evidenced by the note, the failure to pay any part of the debt, Couch should have recovered judgment for the face amount of the note together with interest on the entire amount at the rate of 10% Per annum as provided in the note, from date the debt was matured, November 9, 1964.
In the second count of his cross-action, Couch sought recovery against Mrs. R. L. Thornton, the notary public whose signature and seal of office appeared on the contract for labor and material and trust deed executed by Mr. and Mrs. Babb, and against her surety, Hartford Accident and Indemnity Company, for any loss he might suffer in the event it was established at the trial that the notary public had negligently completed this certificate. The trial court found as a fact that representatives of Couch's assignor had represented to Mrs. Thornton that the Babbs were coming in her place of business momentarily, and that she was awaiting their appearance before completing her notarial act. That the Babbs at no time made their appearance before Mrs. Thornton and shortly after finishing her signature and seal, said representative of Couch's assignor forcefully took the instrument and left her place of business. That Mrs....
To continue reading
Request your trial
-
Lopez v. Lone Star Beer, Inc. of Corpus Christi
...relation. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951); Couch v. Babb, 423 S.W.2d 464 (Tex.Civ.App., Beaumont 1968, wr. ref. n.r.e.); Thomas v. Beckering, 391 S.W.2d 771 (Tex.Civ .App., Tyler 1965, wr. ref. The contro......
-
Urbach v. U.S., 87-1581
...506, 509 (1952); Galvan v. Fedder, 678 S.W.2d 596, 598 (Tex.App.--Houston [14th Dist.] 1984, no writ); Couch v. Babb, 423 S.W.2d 464, 466 (Tex.Civ.App.--Beaumont, 1968, writ ref'd n.r.e.). It is of significant relevance in this case that Texas cases also hold that an intervening criminal ac......
-
Bryan v. Citizens Nat. Bank in Abilene
...Riley v. First State Bank, Spearman, 469 S.W.2d 812 (Tex.Civ.App.-Amarillo 1971, writ ref'd n. r. e.); Couch v. Babb, 423 S.W.2d 464 (Tex.Civ.App.-Beaumont 1968, writ ref'd n. r. e.). 5 See also Continental Nat'l Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928 (1948) (similar hol......
-
Bryan v. Citizens Nat. Bank in Abilene, 5648
...cites Favors v. Yaffe, 605 S.W.2d 342 (Tex.Civ.App. Houston (14th Dist.) 1980, writ ref'd n. r. e.); Couch v. Babb, 423 S.W.2d 464 (Tex.Civ.App. Beaumont 1968, writ ref'd n. r. e.); and Shotts v. Pardi, 483 S.W.2d 879 (Tex.Civ.App. Corpus Christi 1972, writ dism'd), to support his argument ......