First Nat. Bank v. Pearce

• Decision Date: 02 March 1910
• Citation: 126 S.W. 285
• Parties: FIRST NAT. BANK OF ROBERT LEE v. PEARCE et al.
• Court: Texas Court of Appeals

126 S.W. 285

FIRST NAT. BANK OF ROBERT LEE v. PEARCE et al.

Court of Civil Appeals of Texas.

March 2, 1910.

Appeal from District Court, Coke County; J. W. Timmins, Judge.

Action by the First National Bank of Robert Lee against H. H. Pearce and others. From a judgment in favor of defendant E. Rambin, plaintiff appeals. Reversed and remanded.

Kemp & Merchant and Wright & Wynn, for appellant. Anderson & Dumas, for appellees.

RICE, J.

This suit was brought by appellant against H. H. Pearce and E. Rambin on a note executed by them January 5, 1908, for $500, payable to the order of appellant October 1st, after date, with 10 per cent. interest and 10 per cent. attorney's fees, if placed in the hands of an attorney for collection. Pearce failing to answer, judgment by default was taken against him. Defendant Rambin answered by plea of failure of consideration duly verified, as follows: That he executed the note sued upon as a renewal of a note heretofore executed by him to plaintiff, which said original note was without consideration as is also the note herein sued on in this: That said original note was executed for the accommodation of plaintiff bank, and at the request of said plaintiff, acting by and through its officers, and that this defendant has never at any time received any money nor thing of value nor other consideration for or in consideration of the execution of either of said notes, and that said notes were executed for the use and benefit of said plaintiff bank, as accommodation paper, to be used by said bank, and that this defendant has never ratified or promised to pay said note or notes, or any part thereof. By supplemental petition, appellant specially excepted to said answer, among other things, on the ground that the same did not allege or show that no loss or injury was occasioned to plaintiff by the execution and delivery of said note by defendant to plaintiff, nor does it allege that plaintiff did not part with the amount of money in said note specified, and for which it was given, on account of said note. Said special exception was by the court overruled. There was a trial before the court without a jury, and judgment rendered in favor of appellee against appellant, from which this appeal is prosecuted.

Appellant's first assignment of error complains of the action of the court in overruling its special exception to defendant's plea of failure of consideration. In this we think there was no error. The plea was full and definite, and it was not necessary for it, as contended by appellant, to further allege that there was not any detriment or loss to the bank; nor was it necessary that said plea should allege that plaintiff did not part with the amount of money in said note specified. It set forth that the note was given for the accommodation of the plaintiff, and that he (defendant) never at any time received any money or other consideration therefor, which was sufficient. This assignment is therefore overruled.

The second, third, seventh, eighth, tenth, and thirteenth assignments cannot be considered by us, because the bills of exceptions taken to the rulings of the court upon which these assignments are based fail to show or state the objections made to the ruling in excluding the testimony offered. It is always necessary for the bill of exceptions to contain the objection made to the ruling of the court in the exclusion or admission of evidence; and, unless this is done, the error complained of cannot be reviewed on appeal. See M., K. & T. Ry. Co. v. Jarrold, 38 Tex. Civ. App. 425, 86 S. W. 632; Ry. Co. v. Dodson, 97 S. W. 524; Linn v. Walker, 98 S. W. 431.

With reference to the thirteenth assignment, in addition to what has been said, we think that the testimony excluded was likewise objectionable because self-serving.

On the trial the appellant sought to show, among other things, that the original note, for which the note sued on was a renewal, was not executed by Rambin for its accommodation, as pleaded by him, but, on the contrary, the same was executed for the accommodation of Pearce, and that the money for which the same was given was actually paid by the bank to Pearce with his (Rambin's) knowledge and consent.

The fourth assignment complains of the ruling of the court in refusing to allow appellant, on cross-examination of Rambin, to prove by him that he had told Pearce, his codefendant, at the time and...