Olschewske v. Priester

Decision Date28 October 1925
Docket Number(No. 703-4263.)
Citation276 S.W. 647
PartiesOLSCHEWSKE v. PRIESTER et ux.<SMALL><SUP>*</SUP></SMALL>
CourtTexas Supreme Court

Suit by Simon Priester and wife against William H. Olschewske, in which Mrs. Priester, on her husband's death, filed an amended petition continuing the suit as individual, devisee, and administratrix, and defendant filed reconvention. Judgment for plaintiff was affirmed by Court of Civil Appeals (264 S. W. 517), and defendant brings error. Reversed and remanded.

Wm. Masterson and Andrews, Streetman, Logue & Mobley, all of Houston, for plaintiff in error.

Amerman & Sears, of Houston, for defendants in error.

Statement of the Case.

NICKELS, J.

On June 19, 1920, Simon Priester and wife owed one Hegar $22,500; payment of the debt being secured by deed of trust lien on various tracts of land. The lien was in process of foreclosure. Olschewske (their son-in-law) procured a loan of $22,500 from Dan Japhet to take up the Hegar debt; (at least in part) to effectuate the loan, and to secure Japhet, Priester et ux. conveyed the lands to Olschewske, and he in turn, executed a deed in trust to H. J. Dannenbaum, trustee — all on June 19, 1920. Olschewske signed the note for $22,500 to Japhet.

"Family trouble" resulted in divorce of Olschewske and his wife in June, 1922, and thereafter steps were taken to procure reconveyance from him, which failed, and this suit resulted. Priester and wife filed the suit August 23, 1922, alleging that their deed to Olschewske was really in trust to secure the Japhet debt, but that Olschewske "now claims the property as his own." Recovery of title and possession was prayed. Priester died testate in September, 1922, Mrs. Priester becoming his sole devisee and administratrix without bond. October 12, 1922, she filed an amended petition continuing the suit in her individual, devisee, and administratrix capacities. February 5, 1923, Olschewske filed an amended answer and a reconvention, in which he admitted the deed from Priester and wife was in trust, but, he claimed, it was intended to and did secure payment of all indebtedness he then had or should thereafter have against Priester, as well as security for the Japhet debt, and, consequently, a note for $9,400 executed to him by Priester October 13, 1920, and other claims were thus secured; he sought recovery on the note. Thereafter the suit became one largely of accounting between the parties.

By supplemental petition filed thereafter on February 5, 1923, Mrs. Priester interposed a verified plea in words as follows:

"Plaintiff denies that the note for $9,400 set up in defendant's answer, for which a recovery is sought, was executed by Simon Priester or by his authority.

"Plaintiff alleges that the note shows on its face that it has been falsely and fraudulently altered in a material particular in this, that the note shows on its face to have been originally made out for $400, and that without the knowledge or consent of Simon Priester it has been fraudulently raised to $9,400, thereby rendering the same a forgery in violation of the laws of this state, and rendering the note void.

"Plaintiff alleges in this connection that from her knowledge of her husband's affairs and his dealings with the defendant, who was then his son-in-law, and based upon the records kept by Simon Priester, deceased, and evidence, furnished Simon Priester from time to time during his lifetime by the defendant, that on or about the date of the alleged note, Simon Priester was temporarily indebted to the defendant in the sum of $400, and if any note were made by Simon Priester had he executed and left with defendant a note signed and dated, showing the amount of $400, together with the date and the signature; that said note was otherwise blank; that said note sued on shows on its face that the figure `9' has been inserted ahead of the `$400' as written by Simon Priester, and the body of the note has been filled in, in words and figures, to represent a note for $9,400, instead of for $400 as originally written; that other changes are apparent on the face of the note, so as to attempt to make the writing and the ink as originally written, and as altered, to correspond; that such material alterations are such as to entirely destroy the validity of said note, and to render it a forgery."

Before the note was introduced in evidence, plaintiff introduced testimony of the following import: Mrs. Olschewske said she was present and joined in the deed of trust to Dannenbaum "to secure a debt to Dan Japhet." Dannenbaum's firm (Messrs. Dannenbaum, Ammerman & Sears) were counsellors to Priester and wife (and Mrs. Olschewske) in 1922, etc. Mr. Sears testified that he talked with Olschewske (about the time of the conveyance from Priester et ux.), and that Olschewske then said "that he was going to have" the land "in his own name" in order to protect himself on the Japhet loan. Judge Ammerman testified to a conversation with Olschewske, in which he said "at first" that "he had taken the deed from Simon Priester and wife in order to secure himself in the signing of a deed of trust to Dan Japhet, and also a note which he had signed to Japhet for $22,500," and that he would reconvey the property providing that he (Ammerman) would secure him a release from Japhet so he would not be personally responsible to Japhet, and, later, "Olschewske did refuse to reconvey this property upon my undertaking to get a release from Mr. Japhet," and (still later) "Olschewske then claimed that he had some more claims in addition to the Japhet note." Of these claims Judge Ammerman then said:

"I tried perhaps on a dozen occasions to get him to give me these, but he never did give them to me. There was always something that delayed the getting, and he never did give them until they were filed in this suit."

It was made to appear that there existed some bad feeling between Priester's son and Olschewske, and "family trouble" had resulted in a divorce. The son testified to and somewhat emphasized the point that after his father's death he called on Olschewske "several times for a statement of any indebtedness or claims he had against" Simon Priester, "`but he always made excuses and prayed for time,' saying he would give me a statement `just as soon as he had time to get it up,' and that he (Olschewske) did not know how he and Simon stood — he would have to look into that," etc. The son also testified that Olschewske had given him certain papers pertaining to the $22,500 lien, and that "he did not claim any other indebtedness against my father at that time."

The note as introduced in evidence was sent up with the record. Its appearance is such as to indicate that some of its wording and figures were changed, "traced over," etc., at some time; and after it was introduced in evidence some expert witnesses pointed out these indicia of change.

The proffered testimony discussed in the opinion was offered after the above described testimony of Mrs. Olschewske, Priester's son, Mr. Sears, and Judge Ammerman was given.

In response to a special issue the jury found that the note "had been raised by the defendant from $400 to $9,400 without the consent of Simon Priester." Recovery on the note was denied in the judgment. The judgment was affirmed by the Court of Civil Appeals. 264 S. W. 517.

Opinion.

Olschewske, while testifying in his own behalf, was asked: "Did you or anyone else ever make any alterations in that note after Mr. Priester signed it?" Objection was made that the question called for testimony concerning a transaction with a deceased person, and its answer, therefore, would contravene the terms of article 3690, R. S. 1911. The objection was sustained. If answer had been permitted, Olschewske would have said: "No, sir; none whatever." The trial court's action in this respect is here for review.

The objection made and sustained was not to the form of the question, but related solely to the inhibition of the statute. If any part of the testimony called for was proper, the objection should have been overruled. Wells v. Hobbs, 57 Tex. Civ. App. 375, 122 S. W. 451, 453, and cases there cited. Authenticity of the signature itself was admitted, or it proved itself, since the necessary import of the non est factum restricted the plea to alterations after signing. Mrs. Priester could not defend on forgery by alteration without admitting the signature; for the one presupposes the other. The fact of signature was, without objection, assumed in the language of the special issue, and this signifies it was admitted throughout the trial; the verdict establishes it as a fact. There was and is no controversy about it. The inhibition of the statute (where it applies) is that a party shall not "testify against" the other. "Against" signifies discord or conflict, and not harmony. If one party says a certain fact exists, and the other affirms existence of the same fact, they are not juxtaposed; they are "with" each other. A mere reference to a fact which admittedly exists, and which has been affirmatively set up by one party as a necessary basis of a defense, cannot be regarded as testimony "against" that party. Especially is this true in view of the sound reasoning in cases which hold that the inhibition must be given a strict construction, and that it will not be extended to evidence which does not (in source or subject-matter) plainly come within its range. Roberts v. Yarboro, 41 Tex. 449; Martin v. McAdams, 87 Tex. 225, 27 S. W. 255; Markham v. Carothers, 47 Tex. 25; Newton v. Newton, 77 Tex. 508, 14 S. W. 157; Dodson v. Watson (Tex. Civ. App.) 225 S. W. 586.

The matter is to be determined, therefore, as if Olschewske had been asked whether he made alterations in the note on or after October 13, 1920. When thus viewed there is no warrant for the application of article 3690. The exact issue advanced by pleading and...

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