Red River Nat. Bank v. Bray

• Decision Date: 15 December 1910
• Citation: 132 S.W. 968
• Court: Texas Court of Appeals
• Parties: RED RIVER NAT. BANK v. BRAY et al.

132 S.W. 968

RED RIVER NAT. BANK v. BRAY et al.

Court of Civil Appeals of Texas.

December 15, 1910.

Rehearing Denied January 5, 1911.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

Action by the Red River National Bank against E. C. Bray and others. Judgment for defendants, and plaintiff appeals. Reversed and judgment rendered as to part, and affirmed in part.

Chambers & Black and Lennox & Lennox, for appellant. Short & Feild, for appellees.

WILLSON, C. J.

April 30, 1906, E. F. Bray and Erminia C. Bray, his wife, executed and delivered to appellant their note for the sum of $4,000, and to secure the payment thereof at the same time executed and delivered to a trustee their deed conveying a house and lot in Clarksville. The house and lot were a part of Mrs. Bray's separate estate, same having been given to her by her grandfather before her marriage. At the time of the transaction mentioned Bray was a member of the firm of Bray Bros., Dry Goods Company, then doing business in Clarksville, but which later, it seems, ceased to do business in Clarksville, and engaged in business at Paris, Sherman, Dallas, and other points. The note referred to represented money borrowed by Bray for use by the Bray Bros. Dry Goods Company in carrying on their business. It was not paid at its maturity. After its maturity, the parties having agreed upon an extension of the time within which the loan should be repaid, the note mentioned was canceled, and other notes representing the indebtedness were executed by Bray and his wife. The other or substitute notes were two in number, and were made April 11, 1907. One of them was for the sum of $2,100, payable October 15, 1907. The other was for the sum of $2,133.30, payable December 15, 1907. At the time Bray and his wife executed and delivered the substitute notes, as security therefor, they executed and delivered to a trustee a deed conveying the house and lot above referred to. Neither of the two notes was paid at its maturity, but between the date of its maturity and July 7, 1908, payments amounting to $1,500 were made on the one due October 15, 1907. As a result of efforts on the part of Bray to induce it to do so, appellant finally, on said July 7, 1908, in consideration of the payment to it in advance of interest to accrue on the notes to October 1, 1908, agreed with Bray to extend the time of payment thereof to said October 1, 1908. Default having then been made in their payment, proceedings were commenced to enforce in accordance with its terms the trust deed last executed, by a sale of the house and lot, when Mrs. Bray joined by her husband commenced her suit to cancel said trust deed and to enjoin appellant and the trustee named in the deed from proceeding further to enforce same. The suit resulted in a judgment granting the relief prayed for by Mrs. Bray, and dismissing appellant's cross-action, whereby it sought, among other things, a recovery against Bray and his wife of the sum unpaid of the two notes executed and delivered by them as substitutes for the $4,000 note.

It clearly appeared that the notes were not executed by Mrs. Bray on account of necessaries furnished her or her children, or on account of expenses incurred by her for the benefit of her separate estate. Therefore, by executing same she incurred no personal liability, and a judgment could not have been rendered against her for the indebtedness they evidenced. But, while she incurred no personal liability on account of the execution by her of the notes, by the execution of the deed of trust the house and lot belonging to her became liable as a surety would have been for the payment of the debt of her husband evidenced by the notes. Anything which would have operated to discharge a person who as surety for Bray might have executed the note, would operate as a release of the lien created on the house and lot because of the execution by her of the deed of trust. Wofford v. Unger, 55 Tex. 483; Angel v. Miller, 16 Tex. Civ. App. 679, 39 S. W. 1092. It is well settled that "when the obligation of a surety," quoting from I Brandt on Suretyship and Guaranty, § 376, "is for the debt of the principal, if the time of payment is without the consent of the surety, by a binding agreement between the creditor and principal, extended for a definite time, the surety is discharged." "The reason is," Mr. Brandt adds, "that the surety is bound only by the terms of his written contract, and if those are varied without his consent it is no longer his contract, and he is not bound by it." It is also well settled that the payment in advance of interest to become due on a debt is a sufficient consideration to support an agreement for an extension of the time of payment thereof. 1 Brandt on Suretyship and Guaranty, §§ 386, 394. The trial court being of the opinion, evidently, that the testimony showed conclusively that Bray and appellant, without Mrs. Bray's consent, on July 7, 1908, had bound themselves by an agreement whereby the latter undertook to extend the time of payment of the notes to October 1, 1908, in consideration of the payment to it in advance by the former of the interest which would accrue to said October 1, 1908, on the indebtedness evidenced by the notes, peremptorily instructed the jury to return a verdict in favor of Mrs. Bray.

It is insisted that such instruction was error, first, because there was testimony tending to show that Mrs. Bray had consented that the extension so agreed upon might be made; and, second, because there was evidence tending to show that appellant was induced to enter into the agreement in reliance upon false and fraudulent representations made to it by Bray, and therefore did not become bound by the agreement. In Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, the Supreme Court said: "From a careful examination of the cases, it appears (1) that it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being `any evidence'; and (2) that it is the duty of the court to determine whether the testimony has more than that degree of probative force. If it so determines, the law presumes that the jury could not `reasonably infer the existence of the alleged fact,' and `that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.' The broad and wise policy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining as a question of law whether the testimony establishes more." Continuing, the court said, quoting from the...