Hollimon v. Karger

• Decision Date: 03 December 1902
• Citation: 71 S.W. 299
• Parties: HOLLIMON et al. v. KARGER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

71 S.W. 299

HOLLIMON et al. v. KARGER.^*

Court of Civil Appeals of Texas.

December 3, 1902.

Appeal from district court, Kerr county; I. L. Martin, Judge.

Action on a note by F. A. Karger against James Hollimon and others. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

W. C. Linden, for appellants. Lee Wallace and W. W. Burnett, for appellee.

NEILL, J.

This suit was instituted in the justice's court by appellee against appellants on the 9th day of July, 1901, upon a certain promissory note, which is as follows: "$131.46. Kerrville, Texas, Oct. 31, 1898. Six months after date I promise to pay to the order of D. C. Acosta one hundred and thirty-one 46/100 dollars at Bank of Chas. Schreiner, Kerrville, Texas, for value received. [Signed] James Hollimon. [Signed across back of note] D. C. Acosta. D. N. Wharton." There are no written pleadings in the record on the part of appellee, the plaintiff below; and, such pleadings being oral, it will be assumed that he pleaded such facts as he deemed necessary to support the judgment. The appellant Hollimon pleaded non est factum, failure of consideration, and that plaintiff was not a bona fide holder, but took the note with notice that it was without consideration. The appellant D. N. Wharton also pleaded that appellee was not a bona fide holder, and that he (Wharton) was an accommodation indorser long after the maturity of the note, when it was held by plaintiff, and that he was not liable in this action, for the reason that his liability had not been fixed by protest, or by bringing suit within the time required by statute to fix the liability of an indorser. The case was tried by the court without a jury, and judgment rendered against appellants for the principal and interest due. The court found, and the evidence sustains its findings: (1) That James Hollimon on October 31, 1898, executed the note sued upon; (2) that the payee, D. C. Acosta, indorsed it in blank before maturity, and transferred it to Lee Mason, who became the owner and holder of it for a valuable consideration therefor, without notice of any infirmity or vice in the same; (3) that Lee Mason, before its maturity, after receiving valuable consideration therefor from appellee, F. A. Karger, transferred it to him by delivery, without notice of any vice or infirmity in the note; (4) that Wharton, after its maturity, on the last of June or the first of July, 1899, while appellee was the owner and holder, signed his name on the back of the note to make more sure its payment, with the understanding that Karger would give Hollimon further time to pay it. The court did not find how much time was given in consideration of Wharton's signing, but Wharton testified that Karger told him that, if he would sign it to secure its payment, he (Karger) would give them plenty of time to pay it in.

Conclusions of Law.

It is unnecessary for us to pass upon the question as to whether the trial court was correct in holding that the burden of proof was on the defendants to show that the plaintiff was not a bona fide holder of the note for value, for, regardless of whom the burden was upon, the evidence fully establishes the findings of the trial court that Mason and appellee were each a bona fide holder, for a valuable consideration, of the note, before maturity. Even if it were shown that appellee, when he purchased the note from Lee Mason, had knowledge of such infirmity or vice as would defeat an action on it by the payee, such knowledge would not defeat his right of action, because the evidence shows that Mason was a bona fide holder for...