Ladd v. Anderson

• Decision Date: 29 November 1935
• Docket Number: No. 13147.,13147.
• Citation: 89 S.W.2d 1041
• Parties: LADD et al. v. ANDERSON.
• Court: Texas Court of Appeals

89 S.W.2d 1041

LADD et al. v. ANDERSON.

No. 13147.

Court of Civil Appeals of Texas. Fort Worth.

November 29, 1935.

Rehearing Denied January 10, 1936.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by W. T. Ladd and others against Ella Anderson, the Hub Furniture Company, and others, with a cross-action by the first-named defendant. From a judgment for the first-named defendant against the last-named defendant and plaintiffs, plaintiffs appeal.

Affirmed in part, and reversed and rendered in part.

Leroy A. Smith, Van Zandt Smith, and R. M. Rowland, all of Fort Worth, for appellants.

Perkins & Culbertson, of Fort Worth, for appellee.

BROWN, Justice.

W. T. Ladd, B. H. Martin, Mrs. George E. Cowden, and Dr. J. W. Irion, as individual plaintiffs, and W. T. Ladd and B. H. Martin, as independent executors of the estate of W. G. Turner, deceased, brought suit in the district court of Tarrant county, against Mrs. Ella Anderson, a widow, Hub Furniture Company, a corporation, and the attorneys who represented Mrs. Anderson, alleging that Turner died testate, in January, 1933, leaving an estate in Tarrant county; that his will was therein duly probated, in which Ladd and Martin are named and have qualified and are acting as independent executors; that, in the latter part of 1928, the affairs of the Hub Furniture Company were in bad condition, and it sorely needed funds; that Turner had organized it, and being anxious to make it succeed, persuaded Ladd to become manager of the company, promising Ladd that if he would accept such responsibility he (Turner) would furnish sufficient capital to successfully operate the distressed company, and that the company would not be called upon to repay such moneys advanced, until all of the debts owing by the company were paid and it should become able to pay its obligations out of its profits and earnings, and that Ladd would not be called upon to indorse any of the company's paper. That Ladd accepted the responsibility, upon such conditions and promises. That at such time the company owed, and still owes, a large amount of indebtedness which it has never been able to pay. That Turner advanced large sums to the company, aggregating about $90,000, which Turner took credit for on the books of the company. That it was agreed that 6 per cent. interest would be paid by the company monthly on such advances. That subsequent to the making of the advances, on, or about, April 1, 1929, Turner requested the bookkeeper of the company to prepare three promissory notes, payable to his order, two in the sum of $20,000 each, and one for $50,000 (which covered the advancements Turner had made), and to have same executed. That the notes were executed, but his account was not charged with them, at his suggestion, and that, at his suggestion, the notes were not entered upon the company's bills payable, and that it was not intended that the giving of the notes would terminate or modify the original agreement made as to the payment of the advances made by Turner. That one $20,000 note, dated April 1, 1929, was made to mature January 1, 1931, bearing interest from date at 6 per cent. per annum, payable on the first day of each month, after its execution, and was, by Turner, on May 1, 1929, given to his sister, Mrs. Ella Anderson; that Turner indorsed same "without recourse," and that Mrs. Anderson gave no consideration therefor. That on, or about, May 1, 1929, without other or further consideration, Turner caused the company to execute a new note in lieu of the one described, payable in the same amount, with the same terms as to interest and maturity, but naming Mrs. Anderson as payee. That there were no indorsements on such note, and same was a mere gift to Mrs. Anderson, and that the company paid her the interest, as it accrued, each and every month. That on or about December 30, 1929, at a time when Mrs. Anderson was holding and collecting the monthly interest thereon, Turner, acting for Mrs. Anderson, requested Ladd, Martin, Irion, and Mrs. Cowden to sign their names with him, on the back of the note; that they demurred and declined to do so, but that Turner insisted and then and there stated that the signers would incur no liability by so signing, and such signatures were not requested for the purpose of creating any such liability and not intended as such, and that if any liability should thus be incurred he, Turner, would hold the signers harmless; that they indorsed the note, relying upon the representations made by Turner; that some nine months after the note fell due, Turner requested the company to execute four notes, each for $5,000, in lieu of the original note, and on October 12, 1931, the four notes were so executed, payable to Mrs. Anderson, maturing September 1, 1932, 1933, 1934, and 1935, respectively; that, at the request of Turner, plaintiffs indorsed the notes, without any consideration moving to the indorsers, and upon Turner's representations that the indorsements would create no liability against the indorsers, that such were asked solely to accommodate Turner and Mrs. Anderson and "make Mrs. Anderson feel better," but that if any liability should attach, he, Turner, would hold the indorsers harmless; that when the $5,000 note, which matured on September 1, 1932, fell due, Turner requested the company to execute a new note payable March 1, 1933, but no demand for payment had been made upon the company, or upon any indorser, by either Turner or Mrs. Anderson, and that this note was indorsed by the same parties under such circumstances and conditions as related to the prior notes.

Plaintiffs prayed for an injunction, restraining Mrs. Anderson and her attorneys from selling and transferring the notes, pending a hearing on the merits, and for judgment canceling and avoiding their indorsements on them. The temporary relief was granted.

Mrs. Anderson answered, denying all of the allegations seeking relief upon the part of the indorsers, and at the same time filed a cross-action against the maker, Hub Furniture Company, and all indorsers, alleging that the notes and indorsements are valid and regular, and specifically pleading waiver and estoppel on the part of the indorsers, who were alleged to be stockholders in and directors of the Hub Furniture Company.

The trial was to a jury and sixteen special issues were submitted to the jury, in substance, as follows: (1st) Did Turner make the oral agreement with Ladd that in consideration of Ladd taking over the duties of general manager of Hub Furniture Company, Turner would furnish all of the moneys necessary to finance the company and that such advances were not to be repaid until all other debts owing by the company were paid? To which the jury answered, "Yes." (2d) Did Ladd, Irion, Martin, and Mrs. Cowden indorse the $20,000 note, dated May 1, 1929, at Turner's request and upon Turner's statement that such indorsements would create no liability against the indorsers? To which the jury answered, "Yes." (3d) The jury was asked to find whether the indorsers believed and relied upon Turner's statements, etc., in indorsing the note, but the jury failed to answer the issue. (4th) Did the said indorsers indorse the four $5,000 notes, in renewal of the $20,000 at the request and statement of Turner, made through Ladd, that their indorsements would create no liability against them? The jury failed to answer such issue. (5th) Did the said indorsers indorse the $5,000 renewal note under the same facts and circumstances as set out in issue No. 4? To which no answer was made. (6th) Did Turner indorse the notes solely for the benefit of his sister, Mrs. Anderson? The jury answered, "Yes." (7th) Did the $20,000 note, payable to Mrs. Anderson, have the indorsements of Turner, Martin, Irion, and Mrs. Cowden thereon, when same was delivered to Mrs. Anderson? The jury answered, "Yes." (8th) Did Mrs. Anderson agree to accept the four $5,000 notes in renewal and extension of the $20,000 note on the condition that Turner, Martin, Ladd, Irion, and Mrs. Cowden indorse them? The jury answered, "Yes." (9th) The jury found that the first maturing $5,000 note was renewed upon the same conditions. (10th) The jury found that W. T. Ladd on or about March 1, 1933, requested J. B. Hamilton (officer of a bank in whose hands the notes were placed for collection) for additional time in which to pay the note due March 1, 1933; and (11th) that B. H. Martin on or about March 1, 1933, made a similar request; and (12th) that Ladd made a similar request on or about March 7, 1933; the 13th issue asked the jury to find whether or not the plaintiffs and W. G. Turner by their acts and conduct, prior to the renewal and extension of the $20,000 note, payable to Mrs. Anderson, by the execution and delivery of the four $5,000 notes, caused Mrs. Anderson to believe that they would become liable thereon as indorsers. The jury answered, "Yes." In answer to issue 14, the jury found that Mrs. Anderson would not have accepted the renewal notes and extended the debt except for such belief. Issue 15 is exactly like issue 13, except that it relates to the $5,000 note executed in renewal of the first $5,000 note theretofore executed, and the jury answered in the affirmative; and to issue 16, found that Mrs. Anderson would not have accepted the new note and extended the debt, but for such belief.

The plaintiffs filed written objections to the charge, all of which were overruled, and exceptions taken.

On this incomplete verdict the district court rendered judgment in favor of Mrs. Anderson against the Hub Furniture Company, W. T. Ladd, B. H. Martin, Dr. J. W. Irion and Mrs. G. E. Cowden, and the executors of W. G. Turner's estate, for the principal, interest, and attorney's fees provided for in the three $5,000 notes that mature September 1, 1933, 1934, and 1935, respectively, and against the said company, Turner's executors, W. T. Ladd and B. H. Martin on the...