National Bank of Commerce v. Williams

• Decision Date: 03 July 1935
• Docket Number: No. 6653.,6653.
• Citation: 84 S.W.2d 691
• Parties: NATIONAL BANK OF COMMERCE v. WILLIAMS.
• Court: Texas Supreme Court

Page 691

84 S.W.2d 691

NATIONAL BANK OF COMMERCE v. WILLIAMS.

No. 6653.

Supreme Court of Texas.

July 3, 1935.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by the National Bank of Commerce against George H. Williams. Judgment for plaintiff was reversed, and the cause remanded by the Court of Civil Appeals [62 S.W.(2d) 1108], and plaintiff brings error.

Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

Morgan, Culton, Morgan & Britain, of Amarillo, for plaintiff in error.

Monning & Akin, of Amarillo, for defendant in error.

CRITZ, Justice.

This suit was filed in the district court of Potter county, Tex., by the National Bank of Commerce against George H. Williams. Trial in the district court, where the case was submitted to a jury on special issues, resulted in a judgment and verdict for the bank. On appeal by Williams to the Court of Civil Appeals, this judgment was reversed and the cause remanded to the district court for a new trial. 62 S.W.(2d) 1108. The bank brings error.

The opinion of the Court of Civil Appeals makes a very full and correct statement of the facts and issues of this case. In the interest of brevity we refer to and adopt such statement. We will, however, make such statement in this opinion as is necessary to make it complete within itself.

The bank sued Williams on a plain promissory note, in the principal sum of $1,449.66, executed by Williams and payable to the bank. This note recited that it was given "for value received."

Williams answered the bank's petition by verified plea, wherein he alleged certain defenses to the bank's alleged cause of action. These defenses are set out in detail in the opinion of the Court of Civil Appeals. It is sufficient to say that all defenses pleaded by Williams amounted to a denial that the bank's alleged cause of action ever came into existence; in other words, they amounted to a denial that the note made the basis of the bank's alleged cause of action ever became a legal obligation. Williams did not defend in any particular on the ground that the bank once had a cause of action on the note sued on which was defeated by later events.

After the issues of fact were settled in the district court, and before the introduction of evidence had begun, Williams filed his admission under district and county court rule No. 31, to the effect that the bank had a good cause of action as set forth in its petition, except so far as it might be defeated in whole or in part by the facts of his answer. This admission was filed by Williams in order to obtain the right to open and close in the introduction of testimony and in the argument. This was expressly stated in the written admission, and we presume from the record that he was accorded such rights.

An admission by defendant filed under district and county court rule No. 31, to the effect that the plaintiff has a good cause of action as set forth in his petition, except so far as it might be defeated in whole or in part by facts of the answer, and that such admission is made by defendant in order to obtain the right to open and close in the introduction of testimony and in the argument, admits every fact alleged in the petition which is necessary to the plaintiff's recovery in the first instance, and constitutes an abandonment of all defensive matter, except that in the nature of confession and avoidance. Rector v. Evans (Tex. Com. App. Opinion Approved) 6 S.W.(2d) 105; Smith v. Traders' National Bank, 74 Tex. 541, 545, 12 S. W. 221; Smith v. Frost (Tex. Com. App.) 254 S. W. 926; Ferguson v. American Bank & Trust Co. (Tex. Civ. App. writ ref.) 13 S.W.(2d) 459.

An examination of the bank's petition in the instant case shows that it alleged that Williams, for value received, executed and delivered to it the note made the basis of this suit. The petition contains all other formal allegations required for a petition in the district court on a promissory note....