First Nat. Bank of Garner, Iowa v. Smith

• Decision Date: 02 February 1916
• Docket Number: (No. 910.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: FIRST NAT. BANK OF GARNER, IOWA, v. SMITH.
• Court: Texas Court of Appeals

183 S.W. 862

FIRST NAT. BANK OF GARNER, IOWA, v. SMITH.

(No. 910.)^*

Court of Civil Appeals of Texas. Amarillo.

February 2, 1916.

Rehearing Denied March 1, 1916.

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

Action by the First National Bank of Garner, Iowa, against Morton J. Smith, who filed a cross-petition and attached the property of the Des Moines Silo Manufacturing Company. From a judgment for defendant against plaintiff and the impleaded defendant, plaintiff appeals. Reversed and remanded, save as to judgment against impleaded defendant.

Ferguson & Puckett, of Lubbock, for appellant. W. F. Schenck, of Lubbock, for appellee.

HUFF, C. J.

The appellant bank sued appellee, Smith, on a note dated April 15, 1913, due February 1, 1914, for the sum of $1,094, payable to the order of the Des Moines Silo Manufacturing Company, with interest from date at the rate of 8 per cent. per annum, and alleging that the payee therein, Des Moines Silo Manufacturing Company, indorsed and transferred the same to appellant before maturity for valuable consideration, in due course of business.

The appellee answered, in effect, that appellant was not the owner and holder of the note before maturity for value without notice of the equities of appellee, defeating the consideration of the note, or a purchaser in good faith in due course of trade. He also alleged, in effect, that one J. F. Burrows, as agent for the Des Moines Silo Manufacturing Company, about February 2, 1913, contracted to sell to appellee two silos to be delivered May 1, 1913, freight prepaid to Lubbock, Tex., at which time appellee—

"executed some sort of a written or printed contract in keeping with the terms and agreements made with reference to the sale and purchase of said silos, and that it was agreed at the time and in said contract a warranty or guaranty should be in writing, which this cross-complainant [appellee] alleges was written therein; that the silos so purchased and delivered, or to be delivered, should be put up by said Morton J. Smith at his own expense, and they should be paid for within nine months after such delivery, provided said silos stood the weather and wind of the plains country, and particularly of Lubbock county, Tex., and did not fall down or shrink to where they could not be used, and further provided said silos each and both stood up against the wind and windstorms in said Lubbock county, Tex., thereby guaranteeing that said silos would not fall down nor shrink and become loose so that they would not fall down, and that they would not blow down by any windstorm."

He further alleged, in effect, after the execution of the written contract appellee heard that this particular make of silos would not stand the winds of that country, and, having determined to cancel the contract or order, as he had the right to do, at any time before Burrows left town, he informed Burrows of his purpose; whereupon Burrows informed the appellee that he had full authority to make any trade he saw fit for the manufacturing company, and again warranted and guaranteed that the silos would stand up as above set out; that, should they blow down, the contract should be canceled, and the note given therefor should be canceled and null and void, and that appellee would not be compelled to pay for either one or both of the silos; that the salesman or agent also agreed to lay down the silos f. o. b. cars Lubbock for $1,094, no part of which was to be paid until they had been tested nine months or more. No part nor all the money was to be paid unless each silo came up to the requirements. He also alleged at length that the silos arrived April 24, 1913, and that the company gave instructions to one Penny, its local agent, to collect from appellee the freight, which he refused to pay; that he then informed Penny of his contract which he had made with Burrows, substantially as above set out, and that Penny wired in full his claim to the silo company; that appellee set up the silos after they had been delivered to him, and they afterwards fell to staves or blew down, etc.; that after the silos were delivered to him he signed the note sued on, dated April 15, 1913, under the agreement above set out, upon the condition that, if the silos fell down, etc., he should not be liable on the note. He also alleges damages to his crop harvested to go into the silos by reason of the fact that they fell down, and seeks to make the silo company a party to the cross-petition and to obtain judgment for the amount sued for against it.

Upon special issues and the answers of the jury thereto the trial court entered judgment against appellant and the silo company and rendered judgment against the silo company for $600, foreclosing an attachment lien on the silos.

The first assignment is to the effect that the court erred in not setting aside the findings of the jury, especially the sixth finding; and the fifth assignment is that the court was in error in submitting to the jury the fifth issue, which is as follows:

"Did the First National Bank of Garner, Iowa, acquire the note sued on from the Des Moines Silo Manufacturing Company on April 16, 1913?"

The jury answered this question: "No."

The sixth issue submitted is as follows:

"If you have answered the last issue in the affirmative, then you need not answer this issue, but, if you answered it in the negative, then you ascertain and state in answer thereto what time, if at all, said plaintiff bank acquired said note."

The jury answered: "Not at all."

Appellant asserts under the first assignment that there was no evidence to support the sixth issue submitted to the jury. The facts relied on by appellee to show there was no acquisition of the note before maturity are circumstantial in their nature, and, we believe, sufficient to support a finding by the jury. Bolt v. Bank, 145 S. W. 707; Jones v. Bank, 160 S. W. 126; Bank v. Ricketts, 152 S. W. 646; s. c., 177 S. W. 528. The testimony of the bank officers is that they acquired this note with other collaterals, which were deposited as collateral security to the company's note given to the bank for $6,000 on April 16, 1913, and that the note in question was acquired April 16, 1913. The note bears date April 15, 1913, but there is testimony that it was not delivered until April 24, 1913. The order for the silos, agreeing to give a note for the price of the silos, was dated February 2, 1913, and forwarded to the company. There are letters in the record showing that the bank was the holder of the note before maturity, notifying appellant to that effect; several witnesses testifying for the bank that the note was held as collateral security; in fact, the silo company notified appellee it would dispose of the note, and that it, in effect, had been sold before maturity. There are several circumstances which the appellee relied on to show that the claim made by appellant was and is fictitious, and not bona fide. We shall not set them out in detail.

Special complaint is made of the submission of issue No. 5 because it required the jury to find that the transfer was made on April 16, 1913. We do not think the court should single out in its charge a specific date, requiring the jury to ascertain whether or not the acquisition of the note was had at that time. The issue in this case was whether the note was acquired before maturity. The facts may have authorized the finding that the witnesses who gave the date of its acquisition were in error as to the time, and only gave that date as approximate, or that it was in fact then simply listed as one of the collaterals. The silo company knew that the contract had been accepted and the amount for which the note should be given, and, while there was no actual or manual delivery of the note, it could and would be delivered, and that the witness simply referred to the time of listing the collaterals with the bank. The jury should have been left free on this point without the issue suggested by the court that a finding of acquisition on that day was in any way essential. Bell v. Hutchings, 41 S. W. 200; Ry. Co. v. Green, 49 S. W. 672; McHay v. Peterson, 52 Tex. Civ. App. 195, 113 S. W. 981; Railway v. Gilmore, 62 Tex. 391. However, a finding that it was not on that day delivered to appellant would not defeat a recovery, yet the jury may have concluded, if not then delivered, it was, in fact, never acquired under the peculiar facts of this case. Under the holdings of the courts on the submission of a case upon special issue, this issue and finding might be treated as immaterial. It is, however, a singling out of a fact which the appellee contends in this court, and doubtless did in the court below, as showing appellant never, in fact, became the holder of the note before maturity. Emphasis should not have been given to such a fact by the court in the submission of the issues, especially when it is not such as will defeat a recovery. While we think this issue as submitted error, yet, in the light of the sixth issue above quoted and the jury's finding, perhaps no injury is shown such as will require a reversal. We believe the issue requested by the appellant set up under the sixth assignment was the proper issue to have been submitted, and was the issue in the case, but the appellant did not except in the court below to the refusal of that issue and take his bill of exceptions thereto. We cannot therefore consider it. Article 2061, Vernon's Sayles' Civil Statutes.

The sixth assignment is to the effect that the trial court erred in admitting the parol evidence of appellee to contradict the written contract for the purchase of the silos. On February 2, 1913, the appellee made an order for the silos through the agent or salesman of the Des Moines Silo Manufacturing Company, which was forwarded to the silo company at that place, and who accepted the order and shipped out the silos. The following is the order:

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