Linthicum v. Angelo Furniture Co.

• Decision Date: 03 May 1933
• Docket Number: No. 7849.,7849.
• Citation: 60 S.W.2d 315
• Parties: LINTHICUM v. ANGELO FURNITURE CO.
• Court: Texas Court of Appeals

60 S.W.2d 315

LINTHICUM v. ANGELO FURNITURE CO.

No. 7849.

Court of Civil Appeals of Texas. Austin.

May 3, 1933.

Appeal from District Court, Tom Green County; O. L. Parish, Judge.

Suit by the Angelo Furniture Company against C. Linthicum and another. From part of judgment against the defendant named and in favor of the plaintiff, the defendant named appeals.

Reversed, and cause remanded.

Upton & Upton and Charles Russell, all of San Angelo, for appellant.

Kerr & Gayer, of San Angelo, for appellee.

BAUGH, Justice.

Appeal is from a judgment in favor of the Angelo Furniture Company against C. Linthicum; and in favor of Linthicum over against the executrix of the estate of P. H. Williams, on a negotiable promissory note for $1,600, executed by P. H. Williams, payable to Linthicum, and by him indorsed before maturity to appellee. Suit was by appellee against Williams, as maker, and Linthicum, as indorser. After citation and before trial Williams died. Upon motion of Linthicum, and after dismissal as to Williams, Nannie Mae Williams, executrix of his estate, was made a party defendant. Appellee sought no judgment against her, and she has not appealed from the judgment in favor of Linthicum against her.

Appellant's first proposition is that the trial court erred in not sustaining his general demurrer to appellee's petition, in that it showed upon its face that he was liable only as an indorser of a negotiable note, and that there were no allegations of presentment by appellee as holder thereof, and demand for payment made to the maker at maturity, nor of notice of dishonor by the maker given to him, nor of any waiver of such statutory requirements, in the absence of which no liability was shown against him as indorser.

The case was tried upon appellee's original petition, which sought to hold appellant as indorser. It contained no allegations of presentment to the maker at maturity, nor excuse for not doing so; no allegations of waiver of such presentment; no allegations of protest and notice of dishonor; and no allegations of facts which, under the exceptions contained in the Uniform Negotiable Instruments Act (articles 5932-5948, R. S. 1925), would excuse the appellee as holder in due course for failure to do so. In order to hold an indorser liable on a negotiable instrument, unless otherwise excepted under the Negotiable Instruments Act, presentment for payment to the maker must be made on the date it falls due (sections 70 and 71, art. 5937, R. S.), and notice of dishonor or of nonpayment given to the indorser (section 89 et seq., art. 5938, R. S.). These requirements may of course be waived, and such waiver may be express or implied. Section 109, art. 5938. But it was incumbent upon appellee to plead such waiver, or such other facts as would excuse its failure to comply with the above-cited statutory requirements.

Appellee relies, however, on article 566, R. S., which provides that the liability of an indorser may be fixed without protest or notice by bringing suit thereon against the maker before the first term of court after the cause of action accrues; and contends that, since the record in this case discloses that this suit was so brought, it was not necessary for it to show presentment to the maker for payment, and protest and notice to the indorser in order to establish his...