Hardy v. Lamb
| Citation | 152 S.W. 650 |
| Parties | HARDY v. LAMB. |
| Decision Date | 07 December 1912 |
| Court | Texas Court of Appeals |
Appeal from District Court, Wheeler County; F. P. Greever, Judge.
Action by C. R. Hardy against W. E. Lamb. From a judgment for defendant, plaintiff appeals. Reversed and rendered.
Templeton & Templeton, of Wellington, for appellant. J. B. Reynolds, of Wheeler, for appellee.
Appellant, plaintiff below, sued appellee in the district court of Wheeler county as indorser of three promissory notes for $450 each, alleging, in substance, that said notes were executed by Walter N. Roberson and wife, and delivered to Buckner B. Warren, payable to the order of said Warren, and afterwards by the said Warren indorsed and transferred to appellee. It is further alleged that the plaintiff had used all due diligence to collect the notes from the makers; that the said Walter N. Roberson was dead at the time of the transfer and indorsement thereof by the defendant, and that his estate was notoriously insolvent; that all of the other principals and indorsers of the notes were nonresidents of the state and notoriously insolvent, all of which facts were well known to the defendant at the time of the transfer to plaintiff; that presentment for payment, protest, and notice of protest were expressly waived in the stipulations of said notes, and that the defendant, W. E. Lamb, is the only party to said notes out of whom plaintiff can collect the amount thereof. It is alleged in the petition that a credit of $573.48 was due upon said notes by reason of the fact that plaintiff had intervened in a certain suit in Oklahoma wherein he recovered that amount, leaving a balance due of $1,506. The defendant answered by general and special exceptions and general denial, and specially denied that he ever contracted or agreed to guarantee the payment of the said notes sued on, or that he is in any way liable to pay said notes or any part thereof; that on the 10th day of September, 1908, he did sell, transfer, and assign said notes to plaintiff, but he says that he simply conveyed to plaintiff the title thereto, and that, although he did at the time of the transaction write his name across the back of said notes, yet he says that neither by said act or any other act, agreement, or contract, written or verbal, did he ever bind himself or render himself liable for the payment of said notes; that said notes were made in the territory of Oklahoma, were payable there; that the purchase and sale thereof between plaintiff and defendant took place in Oklahoma, and that under the laws of said territory and the rules and decisions of the Supreme Court thereof, as they existed both at the date of said notes and at the date of the assignment of said notes by defendant to plaintiff, said notes were not negotiable because they and each of them provided for the payment of attorney's fees in the event of the institution of suit thereon; and that, under the laws and decisions of the Supreme Court of said territory, it was settled that the writing of his name across the back of a nonnegotiable promissory note does not bind the indorser to pay on default of the maker, but only evidences his intention to transfer the title to the assignee, and said laws were pleaded in bar of plaintiff's right to recover. The defendant, by way of cross-action, alleged that on the 10th day of September, 1908, he was the owner of the notes described in plaintiff's petition; that plaintiff was the owner of certain vendor's lien notes given by parties living in Collingsworth county, Tex., and secured by lien on the lands in said county, which said notes were transferred to defendant by plaintiff, and in consideration therefor the defendant transferred and assigned to plaintiff the notes sued upon; that in said transaction it was agreed that, in addition to the said Collingsworth county notes, the plaintiff would pay to defendant for said notes described in plaintiff's petition the sum of $55, which sum was agreed should become due and payable so soon as the first note assigned to plaintiff by defendant should be collected. Said agreement was in writing, signed by plaintiff, and was made an exhibit to the answer. There are other matters alleged in the answer not necessary to be stated here. By a supplemental petition plaintiff pleaded the statutes of Oklahoma with reference to negotiable instruments, which under the view we take of the case is immaterial and unnecessary to be set out in this statement.
Appellant's brief is so imperfectly prepared that we have been forced to disregard it. The assignments of error are multifarious argumentative, and confusing. When propositions are submitted following the assignments, they...
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