Lee v. First Nat. Bank of Purdon
Decision Date | 31 October 1923 |
Docket Number | (No. 982.) |
Citation | 254 S.W. 394 |
Parties | LEE v. FIRST NAT. BANK OF PURDON. |
Court | Texas Court of Appeals |
Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.
Action by the First National Bank of Purdon against John S. Lee and another. Judgment for plaintiff, and defendant Lee appeals. Reversed and remanded.
Callicutt & Johnson, of Corsicana, for appellant.
Richard Mays, of Corsicana, for appellee.
O'QUINN, J.
Appellee, First National Bank of Purdon, sued H. T. Hazlewood and J. S. Lee on a note for the sum of $2,315.50 ($2,000 principal and $315.50 interest to maturity), and also for the sum of $9.57 balance due on another note, and for the foreclosure of a mortgage given by Hazlewood on certain personal property and the entire crop to be grown by Hazlewood upon the farm of J. S. Lee during the year 1920 to secure the payment of said notes. Hazlewood was duly served, but filed no answer. Lee answered, setting up that he was surety for Hazlewood on the notes sued upon, and specially pleaded:
(1) That in November, 1919, he rented to Hazlewood his farm of 335 acres for the year 1920 for one-third of the grain and one-fourth of the cotton to be grown on said farm during said year; that Hazlewood desired defendant Lee to assist him in obtaining money with which to cultivate said rented premises, and that plaintiff bank agreed to loan said Hazlewood the money, and that he, Lee, agreed with plaintiff to release his landlord's lien upon the crop grown upon said premises, except his rent of one-third of the grain and one-fourth of the cotton; that plaintiff agreed to loan said Hazlewood a sufficient amount of money to assist him in cultivating the crops upon said rented premises, and he, Lee agreed to become a surety upon the note of Hazlewood for money with which to make a crop and for no other purpose; and that Hazlewood was to and did secure the note by mortgage upon certain personal property and the crop.
(2) That he, Lee, was unlearned, being able only to sign his name mechanically; that plaintiff and Hazlewood stated to him at the time the note was executed that the money being thus loaned to Hazlewood was for the purpose only of making a crop upon the said rented premises; that plaintiff and Hazlewood stated to him that it would require in the neighborhood of $2,000 to make said crop upon said premises; that later plaintiff and said Hazlewood represented to him that the sum of $100 more was needed to make said crop; and that he then executed as surety another note for said sum; that he received no consideration for the execution of either of said notes; that
(3) That said Hazlewood, with the consent of plaintiff, sold and disposed of two mules covered by said mortgage of the value of $400, to which he, Lee, did not consent, and of which he had no knowledge, and that his liability on said note was pro tanto discharged.
(4) That plaintiff received of the crop of cotton and cotton seed and the proceeds of the cotton and cotton seed grown upon said rented farm more than enough to have paid off and fully discharged the said notes sued upon, and that the proceeds of said mortgaged crop were paid into plaintiff bank and deposited with said bank in a sum more than enough to fully pay off and discharge said notes, and pleaded complete payment of same.
(5) That plaintiff, after coming into the possession of the proceeds of said mortgaged crop, did not credit same on said notes, but permitted Hazlewood to receive same and to draw and check out of said bank said money and spend same for purposes other than the payment of said notes, and had thereby released him from liability as surety on said notes.
(6) That he demanded of plaintiff bank, both verbally and in writing, during the fall of 1920, and while said mortgaged crops were being gathered, that plaintiff proceed to foreclose its mortgage, and that plaintiff failed and refused to do so, and allowed same to be gathered, sold, and disposed of by said Hazlewood, and that plaintiff could have collected out of the crops mortgaged and the personal property mortgaged sufficient money to have paid off and discharged all of said notes, but failed and refused to do so, after demand in writing by defendant to do so.
(7) That plaintiff and Hazlewood conspired together to compel him as surety to pay said notes, and that plaintiff allowed Hazlewood to dispose of the mortgaged property, and to appropriate and use the proceeds thereof.
Appellee presented exceptions to sections 4, 5, 6, and 7 ( ) of the answer as being not only insufficient in law, but showed no lawful defense to plaintiff's suit, which were sustained by the court, and said special answers and defenses stricken as follows:
"It is therefore ordered, adjudged, and decreed by the court that said exceptions be, and the same are hereby sustained, and that sections 4, 6 and 7 of the defendant J. S. Lee's answer be stricken out, which is accordingly done."
This eliminated all of said special defensive matters pleaded, except the allegation that Hazlewood had, with the knowledge and consent of plaintiff, disposed of two mules, this allegation being section 5 of said answer.
Appellant then, by leave of the court, filed a trial amendment, amending sections 4, 6, and 7 of the original answer, materially enlarging and amplifying them, among other things alleging that at the time of the execution of the $2,315.50 note sued on and the execution of the mortgage by Hazlewood, is was agreed between plaintiff and appellant, and as a part of the consideration for which appellant became a surety upon said note, that plaintiff would look to the security in said mortgage for the payment of said note, and would collect said note out of the security given by Hazlewood, and that appellant would be called on to pay said indebtedness only, if at all, after plaintiff had compelled Hazlewood to turn over to plaintiff all of said mortgaged crops, and but for this agreement appellant would not have signed said note, to which said trial amendment plaintiff urged its said exceptions, and which the court sustained.
The court having held that appellant's answer presented no defense, upon the conclusion of the case gave a peremptory instruction to the jury to return a verdict for plaintiff, which was done, and judgment rendered for appellee for the debt and foreclosure of the mortgage, to which appellant excepted, and from which he has appealed.
By appropriate propositions, appellant first urges that the court erred in sustaining plaintiff's exception to paragraph 4 of his answer, wherein he pleaded fraud on the part of plaintiff and Hazlewood in obtaining his signature as surety to the $2,315.50 note, in that it contained $1,400 that represented an old and past due debt of Hazlewood to plaintiff bank, of which appellant did not know, and to the inclusion of which he did not consent, but that plaintiff and Hazlewood led appellant to believe that the full sum of said note was for money with which the said Hazlewood was to grow a crop on the farm of appellant, and for no other purpose, by reason of which there was a failure of consideration to the amount of said old debt.
Plaintiff's exception to said paragraph is:
"Plaintiff specially excepts to the allegations in paragraph 4 of said answer, and says they are not only insufficient in law but show no legal defense to plaintiff's suit; and of this it prays the judgment of the court."
While plaintiff denominates this a special demurrer, it is general in its terms, simply challenges the whole of said plea as presenting no defense, and as such it was sustained by the court, and the...
To continue reading
Request your trial-
National Loan & Exchange Bank v. Tolbert
... ... It is not ... denied that, if the sale had been made when the bank first ... made its contract to sell, it would have not only paid the ... $19,500, but would have ... ...
-
Town North Nat. Bank v. Broaddus
...Waco 1972, writ ref'd n. r. e.); Costello v. Sample, 470 S.W.2d 446 (Tex.Civ.App. Waco 1971, writ ref'd n. r. e.); Lee v. First Nat'l Bank, 254 S.W. 394 (Tex.Civ.App. Beaumont 1923, no For example, Berry v. Abilene Savings Association, supra, involved the situation of a college student who ......
-
Southern Sur. Co. v. Merchants' & Farmers' Bank of Avilla
...to the maker, as the latter course would deprive the surety of his equity of subrogation. To the same effect, see Lee v. First National Bank (Tex. Civ. App.) 254 S. W. 394;Bank v. Kittle, 69 W. Va. 171, 71 S. E. 109, 37 L. R. A. (N. S.) 699, Ann. Cas. 1912D, 113;Montgomery v. Martin, 94 Ga.......
-
Aboussie v. Aboussie
...of new house given credit thereon based on oral agreement by builder to accept old house as part payment; Lee v. First Nat'l Bank, 254 S.W. 394 (Tex. Civ.App.1923), reversed because defendant surety on note was denied opportunity to prove oral representations by maker and payee as to use of......