Martin v. Fannin Bank
| Decision Date | 25 March 1965 |
| Docket Number | No. 4340,4340 |
| Citation | 389 S.W.2d 542 |
| Parties | Robert H. MARTIN, Appellant, v. FANNIN, BANK, Appellee. |
| Court | Texas Court of Appeals |
Lamar Carnes, Houston, for appellant.
Bracewell, Reynolds & Patterson, Houston, for appellee.
Summary judgment was rendered for appellee in its suit against appellant on two promissory notes.
Appellant says his pleadings and affidavit raise fact issues precluding summary judgment: (a) that he was induced to execute the notes by appellee's representation and promise that he would not have to pay them except from certain oil and gas income; and that there 'would never be any question as to repayment of said notes other than by payment' by another named person; (b) that he deposited corporate stock certificates with appellee 'with the understanding on his part and the agreement of appellee that no legal action would be taken against appellant' on the notes until appellee had received the oil and gas income; (c) failure of consideration.
The consideration for the original notes of which the notes sued on were renewals, it is admitted, was cash advanced by appellee to appellant. No other fraud being charged, the alleged agreements that appellant would not have to pay the notes, that he would not have to pay them except from specified income, and that no legal action would be taken against him do not constitute a defense. Robertson v. City National Bank, 120 Tex. 226, 36 S.W.2d 481, 483; Dolsen v. De Ganahl, 70 Tex. 620, 8 S.W. 321, 322; Steve Lynn Motor Co. v. Pavelka, Tex.Civ.App., 371 S.W.2d 928; Lassiter v. Boxwell Bros., Tex.Civ.App., 362 S.W.2d 884, 886; Wheeler v. Thomas, Tex.Civ.App., 328 S.W.2d 891, 895; Howeth v. Davenport, Tex.Civ.App., 311 S.W.2d 480, 482, writ ref. n. r. e.; Jones v. Hubbard, Tex.Civ.App., 302 S.W.2d 493, 495, writ ref. n. r. e.; Rasey v. Perryman, Tex.Civ.App., 262 S.W.2d 761, 762; Britton, Bills and Notes (1943) Sec. 53, p. 210; Beutel, Brannan's Negotiable Instruments Law (7th ed.) Sec. 52(4), p. 574, Sec. 16, p. 272; 5 McCormick & Ray, Texas Law of Evidence, Sec. 1643, p. 502; IX Wigmore, Evidence (3rd ed.) Sec. 2444, p. 144.
Appellant testified by deposition that one of the notes (and the prior note which it renewed) was not executed as a result of any misrepresentation or any false information; that 'At the time this note was made I did not know of any misrepresentation'; that the answer he filed alleging the bank's misstatements to him had 'nothing to do with' that note.
Both notes, the record establishes without dispute, were executed in renewal and extension of previous notes. The representations alleged to have been made to induce execution of notes referred to in appellant's affidavit, of necessity are referable to the original notes, under the uncontroverted record, including appellant's deposition. Before the renewal notes were executed, the record shows without dispute, appellant made independent investigation of facts alleged to have been misrepresented by appellee, and arrived at the independent conclusion the matters alleged to have been represented were untrue. He admitted also that he was sure if he signed the original notes the bank would look to him for payment, and he testified by deposition the bank had made it clear to him they were looking to him, and not to other sources, for payment.
'Where one executes an obligation in renewal of a note claimed by the holder to be valid, but known to the maker to be fraudulent or without consideration, the latter will be deemed to have freed the transaction of the fraud, and to have waived the want of consideration, and will not be permitted to plead it.' Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201, 205; Braxton v. Haney, Tex.Civ.App., 82 S.W.2d 984, 986, per Alexander, writ ref., and cases cited. The record justifies the trial court's conclusion that appellant's contentions concerning failure of consideration and misrepresentations do not militate against appellee's...
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