Fisher v. Howard

• Decision Date: 02 April 1965
• Docket Number: No. 16475,16475
• Parties: Barney FISHER, Appellant, v. Gilbert P. HOWARD, Appellee.
• Court: Texas Court of Appeals

Page 482

389 S.W.2d 482

Barney FISHER, Appellant, v. Gilbert P. HOWARD, Appellee.

No. 16475.

Court of Civil Appeals of Texas, Dallas.

April 2, 1965.

Donald G. Gay, Dallas, for appellant.

Gilbert P. Howard and E. L. Markham, Jr., Dallas, for appellee.

DIXON, Chief Justice.

Appellee Gilbert Howard filed suit and obtained a summary judgment against appellant Barney Fisher for debt and for foreclosure of an attachment lien, the debt being evidenced by a promissory note.

In addition to his answer appellant had filed a cross-action in which he asked judgment against appellee for $15,000 actual damages and $35,000 exemplary damages for alleged wrongful attachment. Neither pleading is verified.

The court upon motion of appellee severed appellee's suit and appellant's cross-action, then sustained a motion for summary judgment filed by appellee in his suit and rendered judgment in favor of appellee for $7,019.99, being principal, accrued interest and attorney's fee, and for foreclosure of the attachment lien. Only the judgment in favor of appellee on appellant's note and the foreclosure of the attachment lien are involved in this appeal.

The promissory note which is the basis of appellee's suit and judgment is dated February 25, 1964, payable on demand in the principal sum of $6,300.

In his first two points on appeal appellant contends that the record presents gennine issues of fact (1) as to whether the note was due, and (2) as to whether the note was procured by false representations upon which appellant relied with reference to the due date of such note.

In his counter-affidavit appellant makes these allegations:

'Contemporaneously with the signing of such note and as a part of the same transaction I signed a check in the amount of $3,000.00 payable to Gilbert P. Howard and we agreed that such check when cashed would be credited upon said note as the first payment thereon. We further agreed that such check would not be cashed or presented to the bank for payment until I completed a loan or financing upon certain interests in oil and gas leases owned by me. We further agreed that I was to call Gilbert P. Howard when such financing was completed and that he was to then present the check to the bank for payment. Such financing has not yet been completed and the first payment upon such note is not yet due.

'As a part of the same transaction the said Gilbert P. Howard represented to this affiant that such note was not due at any particular time and this affiant in reliance upon such representation and in reliance upon the agreement of the said Gilbert P. Howard that such check would not be presented for payment until after this affiant's bank financing was completed this affiant signed and delivered said note and check.'

We have concluded that appellant does not by his counter-affidavit raise material defensive fact issues to appellee's suit.

The promissory note which is the basis of appellee's suit is regular on its face, is unambiguous in its terms and is an unconditional promise to pay on demand.

Appellant contends that the parol evidence rule is not applicable in this case for two reasons: (1) the agreement of the parties is evidenced by two writings, the note and the check for $3,000 and parol testimony is admissible to show the connection between the two writings; and (2) execution of the note was induced by false representations of appellee. We see no merit in either contention.

In his affidavit in reply to appellee's motion and affidavit appellant does not deny that he signed the note, or that he owes the amount of money named in the note. In fact, he admits that he signed and delivered the note and that he owes appellee the amount of money named in it. He even alleges that he is trying to borrow the money to pay appellee. But he claims that the note is not yet due.

In effect appellant seeks to vary the terms of the note by showing that the unambiguous terms of the instrument do not express the true agreement of the parties as to payment. Such an attempt to vary the terms of the note will not defeat a summary judgment. In Helmke v. Prasifka, Tex.Civ.App., 17 S.W.2d 463 it is held that there is a distinction between a parol condition affecting the delivery of a written obligation and one affecting its payment. A parol agreement affecting delivery of a negotiable instrument is enforceable by virtue of the Negotiable Instruments Act, Sec. 16, Art. 5932, Vernon's Ann.Civ.St.; whereas a parol condition affecting payment of a delivered instrument is not enforceable if it operates to add to, take from, or vary the terms of the written agreement. In approving this holding our Supreme Court in Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, has said that when facts entitling the moving party to prevail have been established, a motion for summary judgment will not be denied because a party has merely alleged matters which if proved would require that a different judgment be rendered, citing Gulf C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492.

It is true that sometimes the terms of a contract are spread over several different writings, and parol evidence is admitted to explain their relationship to each other. But that rule is not applicable here. Under the parol evidence rule extrinsic evidence is excluded whether such extrinsic evidence be oral or written, as is the check for $3,000 which appellant claims opens the door to evidence contradicting the terms of the promissory note. This phase of the parol evidence rule is discussed by our Supreme Court in Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30.

In the case now before us the note constitutes the agreement and obligation of the maker to pay. The check, which so far as the record shows is an unconditional order for payment at once, is simply one of the means or mechanics in accomplishing payment. It is not to be used in this case to contradict the payment provisions of the note.

Appellant points out that there was no presentment of the instrument for payment. Whether there was a presentment is immaterial here for two reasons: (1) presentment of a demand note is not necessary, Art. 5937, Sec. 70, V.A.C.S., 9 Tex.Jur.2d 188, 197, 251; and (2) by the express terms of the note appellant waived presentment.

In his affidavit appellant further asserts that he and appellee entered into an agreement contemporaneous with the signing of the note to the effect that the check he gave to appellee would not be presented for payment and the first payment on the note would not become due until appellant completed a loan on certain oil and gas leases. Such a defense is not tenable. If extrinsic or parol evidence were admissible to prove such an agreement the note might never become due, for appellant could decide not to complete the loan, or might find it impossible to do so, hence appellant might never become liable for payment. Thus an unambiguous and absolute written obligation to pay would be changed into no obligation at all on the part of the maker. The law is that a negotiable instrument, clear and express in its terms, cannot be varied by parol agreements or representations of the payee that the maker will not be liable. Roseborough v. Phillips, Tex.Civ.App., 389 S.W.2d 593; Bohannon v. Franklin Nat'l Bank of Long Island, Tex.Civ.App., 387 S.W.2d 699; Kane v. Union State Bank, Tex.Civ.App., 384 S.W.2d 358, 361; Johnson v. Packaging Corp. of America, Tex.Civ.App., 375 S.W.2d 780, 782; Dewey v. C. I. T. Corp., Tex.Civ.App., 374 S.W.2d 298; Dean v. Allied Oil Co., Tex.Civ.App., 261 S.W.2d 900.

In the face of the undisputed facts presented by the record we cannot agree that appellant's affidavit that appellee represented 'that such note was not due at any particular date' raised a fact issue of fraud which defeats appellee's summary judgment.

Strictly speaking, the note in fact does not designate any calendar date on which it was to become due, but as a matter of law a demand note is due, though not past due, the moment it is signed and delivered. 9 Tex.Jur.2d 70, 188, 197, 251.

Appellant relies on the rule that where one party has a fiduciary relationship to another, or is in possession of superior knowledge, his statement of a legal conclusion or opinion may constitute actionable fraud. That rule is not applicable here. Such defense must be affirmatively pled and supported by evidence to make out a fact issue. Though appellee is shown to be an attorney-at-law there is no showing whatever that he occupied a fiduciary relationship to appellant, or that appellant had any less knowledge of the matter than appellee.

Among the cases cited by appellant is Altgelt v. Gerbic, Tex.Civ.App., 149 S.W. 233. The case is not in...