Flowers v. Klump, 1847.

• Decision Date: 28 October 1938
• Docket Number: No. 1847.,1847.
• Parties: FLOWERS v. KLUMP.
• Court: Texas Court of Appeals

121 S.W.2d 1025

FLOWERS v. KLUMP.

No. 1847.

Court of Civil Appeals of Texas. Eastland.

October 28, 1938.

Rehearing Denied December 2, 1938.

Appeal from District Court, Stonewall County; Dennis P. Ratliff, Judge.

Action by Mary Klump, individually and as community survivor of the estate of William Klump, deceased, against W. H. Flowers to recover on five notes. From a judgment for plaintiff on four of the notes, defendant appeals.

Reversed and remanded.

E. V. Hardwick, of Stamford, and Robertson & Grindstaff, of Haskell, for appellant.

Fred Stockdale, of Aspermont, and Coombes & Andrews, of Stamford, for appellee.

LESLIE, Chief Justice.

Mary Klump, individually and as duly qualified community survivor of the estate of William Klump, deceased, instituted this suit against the defendant W. H. Flowers to recover upon five promissory notes. One of the notes was for $725, and three for $250 each, and one for $320. A plea of limitation was interposed against the $320 note, which was sustained by the court, and no complaint is made against that ruling.

The defendant alleged by special plea that the $725 note, dated January 1, 1936 was without consideration, and further that it was given in renewal of and in extension of the three $250 notes. A trial was had before the court without a jury and judgment was rendered in favor of the plaintiff on the three notes, aggregating $750, and also upon the $725 note.

From this judgment the defendant appeals. The transcript contains no findings of fact or conclusions of law. There are four assignments of error addressed to the action of the court in the trial of the case and rendition of the judgment. We shall first consider the third assignment which we believe to be decisive of this appeal. It is to the effect that the court erred in sustaining plaintiff's objection and in refusing to admit in evidence a $25 check dated January 15, 1936, and given by the defendant payable to William Klump, or order.

To clearly reflect our holding, a more detailed statement of the case and the testimony will be made. Disregarding the $320 note, the first three notes were each for $250, their principal aggregating $750. The fourth was for $725. It is the defendant's contention that he paid the deceased $25 (evidenced by the check) on the $750 indebtedness and executed the $725 note in suit for the balance. On the trial the court held the $25 check inadmissible, as being in contravention of Art. 3716, R. S.1925, known as the Dead Man's Statute. Disregarding such testimony, if any, the court proceeded to render judgment for plaintiff for the principal and interest called for by the four notes. The defendant insists that had the court held the $25 check admissible and given it its proper probative effect in connection with other circumstances in evidence a different conclusion would have been reached. That, in any event, the exclusion of the $25 check was a prejudicial error, not shown to be harmless, and entitling him to a reversal of the judgment which he complains has the effect of awarding plaintiff a double recovery against him.

In the final analysis the defendant Flowers seeks to prove by circumstantial evidence that the $725 note is a renewal of the unpaid portion (after deducting the $25 check) of the three $250 notes, which were not re-delivered to him at the time of such renewal. It is elementary that such a defense may be established by circumstantial evidence, even though questions arise in the case under the statute referred to. Nesbitt v. First Nat. Bank of San Angelo, Tex. Civ.App., 108 S.W.2d 318.

The three $250 notes were each dated December 1, 1933 and due, respectively, December 1, 1934, 1935 and 1936. Each bore interest from date at the rate of five per cent per annum until paid. The $725 note is dated January 1, 1936 (eleven months before the due date of the last $250 note). This $725 note fell due January 1, 1937 "with interest from maturity at the rate of 10 per cent per annum until paid."

If true and properly established by the evidence, the $25 check would obviously reduce the $750 principal of the three $250 notes to $725. As a circumstance it is offered on the issue of renewal vel non. In connection with that circumstance, the defendant offered testimony that at the date of the $725 note, subsequent thereto and long prior thereto, he did not deposit any sum amounting to $725 in the bank, that he did not deposit as much as $100 at any such time in the bank; that he did all his business through the bank; that he acquired no property or other thing of value whatever during said period of time from the latter part of 1935 until the middle of 1936; that the only transactions he had were small sales of cotton; that "before January 1, 1936, and after January 1, 1936, or from the latter part of 1935 until the middle of 1936, he had no property or thing of value that he did not have before that time." That he acquired none from anyone; that his cash account during said time remained practically the same, that it amounted to very little.

His bank statements were introduced corroborating his testimony relative to receipts and disbursements.

In connection with the above evidence, the plaintiff, Mrs. Klump and her son, Ben Klump, also testified. Ben Klump was familiar with his deceased father's business, residing near him, examined his father's private papers after his death, and had in charge, under his mother's directions, the affairs of the decedent's estate.

Mrs. Klump was not present to testify, but the agreement entered into by the respective attorneys is to the effect that if she had been present she would testify in substance as follows: "It is understood and agreed that the plaintiff, if present, would testify that William Klump was her husband, that he is deceased, and that she has been unable to find any check that was given to W. H. Flowers on or about January 1, 1936, relative to the $725 note and that she has been unable to find any property that was transferred to the said W. H. Flowers on or about that time; that she does not know of anything of value that passed from her husband to W. H. Flowers on or about January 1, 1936, the date of the $725 note."

The testimony of Ben Klump is brief, clear and evidently fair. It is in substance and legal effect the same as that of Mrs. Klump.

After his father's death he "took charge or looked through his papers, his bank accounts, and everything." He found no evidence that his father had ever given Flowers a check for $725, or any other like amount during the periods mentioned in the testimony of defendant Flowers and above set out; that he found no memorandum of such in his father's papers and effects; that he found no evidence that his father had transferred any property to Flowers. That his father kept no account books but had his bank statements from the bank with which he did all his business. He testified that if his father had transferred any livestock or anything of value to Flowers during the said time, he would "probably" have known about it. That no such transfer was made; that his father had not owned any livestock for many years. That so far as he knew, his father paid Flowers no cash during that time, or during last year. That if anything was so transferred by his father he did not know of it.

The importance of all this testimony from the standpoint of both Flowers and Klump is that during all the time, material to the inquiry here, nothing occurred with reference to the financial and property status of either of them indicative of any character of independent consideration passing from Klump to Flowers for the $725...