Horn v. First Bank of Houston, 1240
| Citation | 530 S.W.2d 864 |
| Decision Date | 05 November 1975 |
| Docket Number | No. 1240,1240 |
| Parties | H. D. HORN et al., Appellants, v. FIRST BANK OF HOUSTON, Texas, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Leo A. Kissner, Houston, for appellant.
Charles B. Wolfe, Lee, Brown & Wylie, Houston, for appellee.
This is an appeal from a summary judgment for the plaintiff on a note and guaranty agreements. Appellee First Bank of Houston sought recovery on a promissory note from appellants H. D. Horn, F. H. Horn, Horn Investment Company, and Amco Investment Corporation and on guaranty agreements from appellants Mrs. H. D. Horn and Mrs. F. H. Horn. Appellee's motion for summary judgment was supported by the affidavit of Mr. Carl J. Walker, its vice-president and cashier. The affidavit recited that Mr. Walker was the custodian of appellee's books and records, including the note and guaranty agreements involved here; that the books and records were kept in the ordinary course of appellee's business; that it was the ordinary course of the business for an employee with actual knowledge of the transactions recorded to make such notations at or near the time the events occurred; and that the records indicated appellants were indebted to appellee in the amount of $157,988.76. Mr. Walker's affidavit recited further that Mrs. H. D. Horn and Mrs. F. H. Horn had, on December 1, 1972, executed continuing guaranty agreements guaranteeing payment of any present or future indebtedness to the appellee of Horn Investment Company or their respective husbands; that on February 8, 1974 appellants F. H. Horn, H. D. Horn, Horn Investment Company and Amco Investment Corporation executed a promissory note in the amount of $135,390.00; that the note is due and unpaid; and that appellee is the owner and holder of the note and guaranty agreements.
Appellants' answer to appellee's motion for summary judgment was supported by affidavits of F. H. Horn, Mrs. F. H. Horn and Mrs. H. D. Horn. The answer and affidavits alleged various defenses, including failure of consideration for the guaranty agreements and an offset due H. D. Horn, and also various defects in appellee's affidavit, including the affiant's failure to recite his personal knowledge of the facts stated. The trial court found there was no genuine issue of material fact raised by appellants' affidavits and granted summary judgment for appellee, from which appellants have perfected this appeal.
Under Rule 166--A of the Texas Rules of Civil Procedure the party moving for summary judgment has the burden of proving by means of summary judgment proof independent of the pleadings that there...
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