Davis v. Gray

• Decision Date: 06 May 1884
• Docket Number: Case No. 5089.
• Parties: J. S. DAVIS v. W. S. GRAY.
• Court: Texas Supreme Court

61 Tex. 506

J. S. DAVIS

v.W. S. GRAY.

Case No. 5089.

Supreme Court of Texas.

May 6, 1884.

APPEAL from Hays. Tried below before the Hon. L. W. Moore.

The opinion states the case.

Robert West, Wood & Ford and Sheeks & Sneed, for appellant, cited: Pawling v. U. S., 4 Cranch, 219;Fletcher v. Austin, 11 Vt., 447;Ayres v. Wilson, 53 Mo., 516;People v. Bostwick, 32 N. Y., 380;Lovett v. Adams, 3 Wend. (N. Y.), 380; 1 Wait's Act. & Def., p. 367; Big. & Redf.'s Leading Cases on Bills and Notes, 603 et seq.; Brandt on Suretyship, sec. 354; Powell v. Haley, 28 Tex., 52;Smith v. Sublett, 28 Tex., 163;Briscoe v. Bronaugh, 1 Tex., 326; Parks v. Williards, 15 Smith (N. Y.), 384; Rogers v. Lewis, 8 N. H., 250; Davis v. Bigler, 62 Pa. St., 242; 3 Wait's Act. & Def., p. 451; Wade on Notice, sec. 31 et seq., sec. 672 Barnes v. McClintock, 3 Penn., 67.

Hutchison & Franklin, for appellee.

STAYTON, ASSOCIATE JUSTICE.

The note made the foundation of this action is negotiable in form; bears no evidence on its face that it ever was expected to be signed by any other persons than P. R. Turner & Co. and J. S. Davis, the appellant, and, if the averments of the answer are to be taken as true, was delivered by Turner & Co. to Gray, in the ordinary course of business, for a valuable consideration.

This being true, it must be held that any agreement between Turner & Co. and Davis, to the effect that the note should not be used unless Ellison and Kyle also signed it as sureties, cannot defeat the right of the plaintiff to recover on the note, unless it be shown that he had notice of the agreement between Turner & Co. and Davis.

The signing and delivery of the note by Davis to Turner enabled the latter to deliver it to Gray, who, in the absence of notice to the contrary, might rely upon the intention of all the parties whose signatures were on it, to make with him the contract which the note evidenced. Brandt on Suretyship, 354, 355; State v. Potter, 63 Mo., 212;Russell v. Freer, 56 N. Y., 67;Nash v. Fugate, 32 Gratt., 595;Ward v. Hockett, 30 Minn., 150; Jordan v. Jordan, 10 Lea (Tenn.), 124.

The only inquiry, then, in the case is, does the answer aver such facts as would amount to notice to Gray of the intention of Davis not to be bound by the note unless Ellison and Kyle also signed it as sureties; such facts as would put a prudent man upon inquiry?

We are of the opinion that the answer did not state such facts. It alleges that Hutchison prepared the note and was to pass on the sufficiency of the surety for Gray; that Hutchison proposed to take a note signed by Turner & Co., with Davis, Ellison...