Gilligan v. Gearhart

• Decision Date: 23 February 1967
• Docket Number: No. 258,258
• Citation: 415 S.W.2d 208
• Parties: Bernard F. GILLIGAN, Appellant, v. L. A. GEARHART et al., d/b/a Gearhart Construction Company, Appellees. . Corpus Christi
• Court: Texas Court of Appeals

Page 208

415 S.W.2d 208

Bernard F. GILLIGAN, Appellant, v. L. A. GEARHART et al., d/b/a Gearhart Construction Company,

Appellees.

No. 258.

Court of Civil Appeals of Texas.

Corpus Christi.

Feb. 23, 1967.

Rehearing Denied May 18, 1967.

Wm, J. Kershner, Houston, for appellant.

George D. Byfield, of Ewers, Toothaker, Ewers, Byfield & Abbott, McAllen, for appellees.

OPINION

SHARPE, Justice.

This appeal is from a take-nothing judgment rendered non obstante veredicto in favor of appellees who were defendants below.

Appellant sued appellees upon a promissory note dated March 17, 1962 in the amount of $5,500.00 payable on or before March 17, 1963 to %'L. r. g/arrett d/b/a Modern Mausoleums Inc.' The note was assigned by Garrett to appellant.

The trial court submitted three special issues to the jury which were answered in substance that at the time appellant Bernard F. Gilligan acquired the note in question (1) it was complete and regular upon its face, (2) that he took it in good faith, and (3) that he did not have notice of an infirmity in the instrument or defect in the title of L. R. Garrett.

Appellees filed original and amended motion for judgment non obstante veredicto and alternatively a motion for new trial. The court granted appellees' judgment non obstante veredicto and thereafter made and filed the following findings of fact and conclusions of law:

'1. The note upon which Plaintiff has instituted suit was in fact marked Exhibit 'A' at the top and attached to a contract between the Defendants Gearhart and Modern Mausoleums, Inc., a true and correct copy of such contract being attached to the Plaintiff's Petition in the case and appearing in the evidence in the case.

'2. The Defendant, L. R. GARRETT, without being authorized to do so by the makers of the note, detached such note from the contract, obliterated the words 'Exhibit A' on the note, and transferred it to the Plaintiff, Gilligan, by endorsing it as follows:

%'I, l. r. g/arrett, transfer, sell and assign all rights, title and interest in this note to B. F. Gilligan, and further guarantee payment with interest as appears on the face of the note.

S/ L. R. Garrett

S/ Ivan R. Brown'

'3. The construction of the mausoleum project in the City of Brownsville contemplated by the contract in evidence between Modern Mausoleums, Inc. and the Defendants Gearhart was never commenced and was abandoned as a project.

'4. There was in existence a corporation known as Modern Mausoleums, Inc., duly incorporated under the laws of the State of Texas, at all times pertinent. L. R. Garrett did not at any time have on file any assumed name certificate which showed him doing business under the assumed name of Modern Mausoleums, Inc.'

%'Conclusions of law/

'1. The removal of the note sued upon from the contract to which it was attached marked Exhibit 'A', under the undisputed facts in this case, was a material alteration by reason of which Plaintiff acquired same subject to the defenses of the makers.

'2. In addition to there having been a material alteration of the note, the endorsement was such that Plaintiff could not, as a matter of law, be a holder in due course.

'3. The conditions upon which the note sued upon was to become an effective note were never met by reason of which it never became effective as a promissory note. Alternatively, the conclusion could be that there was complete failure of consideration or want of consideration.

'4. In view of the action taken by the Court in granting Defendant's motion for judgment non obstante veredicto, there is no necessity for passing upon the Defendant's motion for mistrial based upon jury misconduct, though on the basis of the affidavits submitted, it appears to the Court prejudicial jury misconduct had occurred.'

Appellant urges six points of error contending in substance that the trial court erred as follows: (1) in its conclusion of law no. 1, (2) in its conclusion of law no. 2, (3) in its conclusion of law no. 3, (4) in stating in the fourth conclusion of law 'that there appeared to be prejudicial jury misconduct, however, the court was not going to act on defendants' motion for mistrial in view of the action of the court in sustaining defendants' motion for judgment non obstante veredicto', (5) in granting defendants' ...