King v. Wise

• Decision Date: 30 November 1927
• Docket Number: (No. 2921.)
• Citation: 1 S.W.2d 732
• Parties: KING v. WISE et al.
• Court: Texas Court of Appeals

1 S.W.2d 732

KING v. WISE et al.

(No. 2921.)

Court of Civil Appeals of Texas. Amarillo.

November 30, 1927.

Appeal from District Court, Wilbarger County; P. A. Martin, Judge.

Suit by J. A. Wise against B. S. King, wherein I. G. Showers intervened. Judgment for plaintiff for the use and benefit of the intervener, and defendant appeals. Reversed and remanded.

Storey, Leak & Storey and Berry, Stokes & Killough, all of Vernon, for appellant.

Weeks, Morrow, Francis & Hankerson, of Wichita Falls, and Cook, Cook & Donaghey, of Vernon, for appellees.

JACKSON, J.

This suit was instituted in the district court of Wilbarger county, Tex., on December 11, 1922, by the plaintiff J. A. Wise on a note for $4,365.10, with interest, and attorney's fees thereon, executed by Rex Boyd and B. S. King on November 1, 1921, and payable to I. G. Showers, or order, on August 1, 1922.

The case was tried and a verdict directed for the plaintiff against Rex Boyd, who did not appeal, and as to him the judgment rendered on such directed verdict became final.

The court peremptorily instructed the jury to return a verdict against the plaintiff J. A. Wise, and in favor of the defendant, B. S. King, and judgment was entered accordingly. From this judgment J. A. Wise prosecuted an appeal to this court, and the judgment of the trial court was reversed and here rendered for Wise against King. 267 S. W. 543.

A writ of error was granted by the Supreme Court and the judgment of this court was reversed and the case remanded to the district court for a trial of the issues between the plaintiff Wise and the defendant, King. 282 S. W. 570.

The plaintiff, by an amended petition, filed April 25, 1927, alleged that on August 18, 1919, I. G. Showers sold and delivered to Rex Boyd certain live stock for the consideration of $5,800, evidenced by a note of that date, bearing interest at 6 per cent. per annum, containing the usual attorney's fees clause, and payable 1 year after date; that no mortgage was taken to secure the payment of said note, and Showers requested personal security and advised Boyd that if B. S. King, the defendant, would sign the note, either as joint maker or surety, Boyd could have the live stock, to which Boyd agreed; that I. G. Showers advised the defendant of the facts of the transaction, who thereupon signed the note; that said note was not paid at maturity, but in October, 1920, Rex Boyd paid thereon the sum of $2,000, and in December thereafter a renewal note for the balance of $4,258.64, bearing 10 per cent. interest, was executed by Boyd, as maker, and the defendant, King, as indorser; that the renewal note was accepted by Showers, and that the time of the payment of the debt was extended until August 18, 1921, the interest rate changed from 6 per cent. per annum to 10 per cent. per annum, and Showers obligated not to demand payment until the maturity of the renewal note; that the extension of time, the increase in the rate of interest, and the obligation not to sue constituted a valid consideration for said renewal note; that after said renewal note became due, I. G. Showers demanded payment thereof, or, in the alternative, that the interest be paid and a new note given; that on December 1, 1921, a portion of the interest having been paid, Boyd, as principal, and King, as joint maker or surety, executed a renewal note in the sum of $4,365.10, payable August 1, 1922, bearing interest at the rate of 10 per cent. per annum, and containing the usual stipulation for attorney's fees; that said second renewal note was accepted, which obligated Showers to extend the time of payment, receive the interest, and not sue or attempt to collect the debt until the maturity of said second renewal note, which constituted a valid consideration for said second renewal note, which note would not have been accepted unless signed by both Boyd and King; that said last described note was placed in the possession of the plaintiff, who was authorized to collect it when it became due; that after the maturity thereof, the plaintiff demanded payment of both Rex Boyd and the defendant, which was refused, and the note was placed in the hands of an attorney for collection, suit, etc.; that since the judgment against Rex Boyd, which became final, no further payment has been made; that for the reasons alleged the defendant, B. S. King, is liable to plaintiff for the principal, interest, and attorney's fees on said note, which aggregate the sum of $7,415.78.

The defendant, B. S. King, answered by general exceptions, general denial, and pleaded as a defense that the note sued on was given in renewal of an original note executed by Rex Boyd, and accepted by I. G. Showers, as the consideration for certain live stock; that several days after the delivery of the live stock by Showers to Boyd and after the consummation of said transaction, Showers, without the knowledge or consent of Boyd, induced the defendant to sign the original note by representing that Boyd was financially responsible and able to pay the note, and if the defendant would sign the note with Boyd, as an accommodation surety for Showers, that Showers would not hold defendant liable on the note or expect him to pay it unless Rex Boyd died before the maturity of said note, and that the defendant, relying on said representations, signed the note; that such promises and representations were false and untrue when made, and were falsely and fraudulently made for the purpose of inducing the defendant to sign said note, and that I. G. Showers, at the time of making such false and fraudulent representations, did not intend to keep them, and thereby procured the signature of the defendant to said note, and that he received no consideration or benefit whatever, either for the execution of the original or the renewal note; that the original and renewal notes are past due, and that said Boyd is still living; that at the maturity of the original note, Showers requested the defendant to sign a renewal thereof as accommodation surety, and, relying on the representations, promises, and agreements made at the time of the execution of the original note, and without any additional consideration, the defendant signed the renewal note, which is the one in controversy; that at the time he executed the renewal note, he supposed he might, in some event, be liable on the original note, but had he known or been informed, as he now is, that he was, in no event, liable on the original note, he would not have signed the renewal note, and in so doing, he did not intentionally or knowingly waive any defense to the original note, and received no consideration therefor. The defendant denied that the plaintiff is the owner and holder of the note and denied that he is an innocent purchaser for a valuable consideration, but if he is the owner of the note, he acquired it after maturity and had full knowledge of the defenses urged by this defendant.

The plaintiff, by first supplemental petition, denied that the note in suit was a renewal of the original note, denied the plea of failure of consideration, denied the false and fraudulent representations alleged by the defendant, and says that, if the defendant was mistaken as to his legal liability, such mistake was not due to any fault or misconduct on the part of plaintiff.

By permission of the court, I. G. Showers intervened and alleged that he was the legal and equitable owner of the proceeds derived from the collection of the note; that he authorized the institution and prosecution of the suit by the plaintiff, and adopted the pleadings of the plaintiff in the first amended original petition.

By supplemental answer, the defendant, King, denied the allegations of intervener's petition and adopted his original answer in reply thereto.

In response to special issues submitted by the court, the jury found, in effect, that Showers procured the signature of the defendant on the original note by representing, in substance, that he did not intend to hold the defendant liable thereon except in the case of Boyd's death; that his intention in making such representations was fraudulent; that the defendant relied thereon and was induced to sign the note thereby; that the defendant, King, did not sign the renewal note sued upon relying upon said representations; that the interest rate charged in the original note was 6 per cent.; that the defendant did not sign the original note to assist Boyd in the purchase of the cattle; that he signed it only to assure Showers that the note would be collected out of Boyd's estate, if he should die; that Showers had accepted the note of Rex Boyd in full payment for and delivered the cattle, before defendant, King, signed the original note; that defendant, King, knew that Showers was demanding payment of him of the Boyd note before the renewal note in suit was signed; that Showers made no representations verbally or in writing to the defendant, at or before the execution of the renewal note, to induce him to execute it; that Showers would not have accepted the renewal note if the same had not been signed by the defendant; that the defendant signed the renewal note in suit to induce Showers not to bring suit on the indebtedness at that time and to secure an extension of time on said note; that he signed the renewal note in suit for the benefit of Boyd to aid him in securing an extension of time; that I. G. Showers, at the time he made the promises, statements, and representations, did not intend to carry them out.

On these answers the court rendered judgment for the plaintiff that he have and recover, for the use and benefit of the intervener, against the defendant, B. S. King, the sum of $7,428.65, with interest from the date of the judgment, at the rate of 10 per cent. per annum, from which judgment B. S. King prosecutes this appeal.

Appellant, by numerous assignments, challenges the action of the court in rendering judgment against him,...