Johnston v. Branch Banking Co.

• Decision Date: 16 December 1911
• Citation: 143 S.W. 193
• Parties: JOHNSTON v. BRANCH BANKING CO. et al.
• Court: Texas Court of Appeals

143 S.W. 193

JOHNSTON v. BRANCH BANKING CO. et al.

Court of Civil Appeals of Texas. Galveston.

December 16, 1911.

Appeal from District Court, Victoria County; John M. Green, Judge.

Action by the Branch Banking Company against F. W. Johnston and the Wilson Grocery Company. From a judgment for plaintiff against both defendants and in favor of the Grocery Company against Johnston, the latter appeals. Affirmed.

Linebaugh & Crain, for appellant. H. G. Connor, Jr., R. L. Daniel, and Ben W. Fly, for Branch Banking Co. T. R. Wood, for Wilson Grocery Co.

McMEANS, J.

This suit was brought by the Branch Banking Company against F. W. Johnston, as maker, and the Wilson Grocery Company, as indorser, on four certain promissory notes for the sum of $1,250, each dated May 30, 1908, and payable on the 25th day of July, August, September, and October, 1908, respectively. The case was tried before a jury, and, after the evidence was all in, the court instructed a verdict in favor of appellees and against F. W. Johnston, as maker, and the Wilson Grocery Company, as indorser, for the sum of $5,854.15, being the amount of the principal and accrued interest due upon the four notes sued upon, and upon which verdict the court rendered judgment against said Johnston and Wilson Grocery Company, and in favor of appellees, and in favor of the Wilson Grocery Company against Johnston for the sum above named. From this judgment, appellant, Johnston, after his motion for a new trial had been overruled, has appealed.

Appellant, by his first assignment of error, complains of the action of the court in refusing to sustain his general demurrer to plaintiffs' petition. The petition alleges, in substance, the following: In February, 1908, James Mulligan owed the Wilson Grocery Company $5,000 on open account, for the payment of which account appellant, F. W. Johnston, and Grommett Bros., were responsible. About that time James Mulligan and appellant, Johnston, in payment of this account, executed and delivered to the Wilson Grocery Company their note for the principal sum of $5,000 payable to the order of the Wilson Grocery Company and due May 1, 1908. The Wilson Grocery Company indorsed said note, and sold it to the Branch Banking Company, and was credited with the proceeds. When this note became due James Mulligan was insolvent. By agreement with the bank, then made, James Mulligan and appellant Johnston executed four notes all dated May 30, 1908, each for the principal sum of $1,250, payable July 25, August 25, September 25, and October 25, 1908, respectively, all being payable to the order of Branch Banking Company, and these notes were prior to their delivery indorsed by the Wilson Grocery Company. These notes were taken by the Branch Banking Company in payment of the $5,000 note above mentioned, which was surrendered by the bank to Mulligan. James Mulligan died in June, 1909, insolvent. The Branch Banking Company had been demanding payment of said four notes prior to this time, and on March 30, 1909, it was agreed between the Banking Company and the Grocery Company that, if the Grocery Company would pay $2,000 on its general indebtedness to the bank, its indebtedness at that time being $10,000, including that evidenced by the four notes of Johnston and Mulligan, and give its note for the balance of the indebtedness of the Wilson Grocery Company to the Branch Banking Company, including that evidenced by the four notes sued on, and leave the four notes sued on with the bank as collateral security for the indebtedness of the Wilson Grocery Company to the bank, the bank would carry the matter in that shape,...