Hoss v. Fabacher
| Decision Date | 15 February 1979 |
| Docket Number | No. 17281,17281 |
| Citation | 578 S.W.2d 454 |
| Parties | 26 UCC Rep.Serv. 436 Roger HOSS, Appellant, v. Leo H. FABACHER, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Pope & Waits, Dougal C. Pope and Edward W. Engel, Houston, for appellant.
Charles T. Richardson, Clute, for appellee.
Roger Hoss, plaintiff below, appeals from a take-nothing judgment after a non-jury trial of a suit and a cross-action. The plaintiff complains that he was entitled to recover on a bearer instrument signed by the defendant. Findings of fact and conclusions were filed. We find that the paper in question is unenforceable on its face and we affirm.
Plaintiff's trial pleading was based on a "bearer instrument", a copy of which he attached to his trial petition. It is a form on which some of the blanks have been filled in:
Freeport, Texas, 15 April 1971 $6002.19 For value received, I, we, or either of us, the undersigned, promise to pay to the order of In monthly installments of $ each and one installment of ______, the first installment to become due and payable on or before the 16 day of July, 1971, and one installment to be due and payable on the day of each succeeding month until the whole of said indebtedness is paid with interest from Date at the rate of 10 per cent per annum.
All past due principal and interest . . .
It is understood and agreed that failure to pay . . .
(There was also a provision for payment of an attorney's fee and a waiver of presentment, notice and protest.)
The form bears the signature of the defendant.
The plaintiff alleged that payment was due and that demand had been made. Fabacher's answer generally denied Mr. Hoss' allegation and asserted the affirmative defense of forgery, and he sought damages plus punitive damages in a cross-action based on sale of a ship.
We summarize the trial court's findings of fact concerning the paper in question: 9) Fabacher's signature on it is genuine, 10) the name of the payee is not filled in and is blank, 11) the sum to be paid is not filled in and is blank, and 12) the defendant denied that he made and executed a bearer instrument.
We also summarize the trial court's conclusions of law concerning the purported note: 6) the plaintiff has failed to make a Prima facie case in that the instrument in question is unenforceable on its face and is an incomplete order instrument, and 7) Sections 3.111 and 3.115(a) of the Business and Commerce Code control this case.
The appellant's first five points of error are that the trial court erred 1) in holding that Sections 3.111 and 3.115(a) of the Business and Commerce Code control this case, because the defendant has no pleadings on which that holding may be based and because it is Section 3.307 that is controlling; 2) in finding that the sum paid is not filled in on the note in question; 3) in failing to find that the plaintiff owned the note in question; 4) in concluding that the plaintiff failed to make a Prima facie case because, the court concluded, the instrument in question is unenforceable on its face and is an incomplete order instrument; and 5) in failing to find that the plaintiff was entitled to recover on the note in question since no payment had been made on it.
Under the Texas Business and Commerce Code, " 'instrument' means a negotiable instrument." § 3.102(a)(5) (1967). To be a negotiable instrument, the writing must (1) be signed by the maker or drawer, (2) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by the Code, (3) be payable on demand or at a definite time, and (4) be payable to order or to bearer. § 3.104(a) (1967). An instrument is payable to bearer when by its terms it is payable to (1) bearer or to the order of bearer; or (2) a specified person or bearer; or (3) "cash" or the order of "cash", or any other indication which does not purport to designate a specific payee. § 3.111 (1967) The official comment to this section clearly states
2. Paragraph (c) is reworded to remove any possible implication that "Pay to the order of " makes the instrument payable to bearer. It is an incomplete order instrument and falls under Section 3-115.
Section 3.115(a) of the Code, titled "Incomplete Instruments," provides that when a paper whose contents at the time...
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Emc Mortg. Corp. v. Davis
...EMC argues there is no ambiguity in the agreement between the parties because the note does not omit terms, see, e.g., Hoss v. Fabacher, 578 S.W.2d 454, 455-56 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ) (instrument unenforceable because it did not contain promise to pay amount); does ......
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...contain an order to pay, a designated payee, and the amount payable. Tex.Bus. & Com.Code Ann. §§ 3.104, 3.115(a) comment 2; Hoss v. Fabacher, 578 S.W.2d 454, 455 (Tex.Civ.App. — Houston 1st Dist. 1979, no writ). When Aubin signed the drafts at the blackjack table, they were sufficient. Each......