Schultz v. Aetna Business Credit, Inc., 15584
| Decision Date | 28 July 1976 |
| Docket Number | No. 15584,15584 |
| Citation | 540 S.W.2d 530 |
| Parties | Robert F. SCHULTZ et al., Appellants, v. AETNA BUSINESS CREDIT, INC., Appellee. |
| Court | Texas Court of Appeals |
Frank Y. Hill, Jr., Boerne, for appellants.
Stephen Lang, Mark J. Cannan, Lang, Cross, Ladon, Boldrick & Green, San Antonio, for appellee.
Appellants, Robert F. Schultz and John W. Kenney, complain of the rendition of a summary judgment against them in the sum of $54,938.19, representing principal and interest on a note executed by appellants.
The suit was originally filed by appellants against appellee, Aetna Business Credit, Inc., and others, seeking damages for fraud allegedly committed by others in connection with appellants' purchase of certain equipment to be used in the installation of a 'laundrymat' facility. Pleas of privilege filed by all parties other than appellee were granted. Appellee filed a cross-action seeking recovery on a promissory note executed by appellants and payable to Elmco, Inc., one of the other parties to the original suit. Appellee alleged that it was the holder and owner of such note as assignee of Elmco. 1
Appellants first assail the judgment below on the ground that the summary judgment record fails to establish as a matter of law that the note in question was assigned by the payee to appellee.
In support of its motion for summary judgment appellee filed the affidavit of Ben E. Engstrand, appellee's divisional vice president. The affidavit recited that on December 6, 1973, Elmco, 'through its proper representatives,' assigned, endorsed, and delivered the note in question to appellee. The affidavit states that appellee 'is still the lawful and legal owner and holder' of the note.
Appellants assert that the statement in the affidavit to the effect that, the original payee, through its proper representatives, assigned the note to appellee, is part hearsay and part a legal conclusion on the part of the affiant and, therefore, is insufficient to establish appellee's right to recover on the note.
Paragraph (i) of Rule 93, Tex.R.Civ.P., provides that in the absence of a sworn denial of 'the genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an indorsee or assignee . . ., the indorsement or assignment thereof shall be held as fully proved.' Here appellee alleged that the note in question was 'assigned, indorsed and delivered' by the payee to appellee. Since appellants failed to question under oath the validity of the alleged endorsement and assignment, appellee was not required to submit proof thereof.
Appellant next argues that, assuming a...
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Eaves v. Unifund Ccr Partners
...who pled that it was a holder of the note and entitled to sue on it, was entitled to sue to collect on the note); Schultz v. Aetna Business Credit, Inc., 540 S.W.2d 530, 532 (Tex.Civ.App.-San Antonio 1976, no writ) (instrument of assignment, which transferred to assignee of promissory note ......
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Shipley v. Partners
...(Tex.App.-Corpus Christi 1993, writ denied) (note transferred to MBank making MBank the holder of the note); Schultz v. Aetna Business Credit, Inc., 540 S.W.2d 530, 531 (Tex.Civ.App.-San Antonio 1976, no writ) (assignor transferred “all of its rights, title and interests” in the relevant in......
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Thompson v. HSBC Bank United States
...oath the validity of the existing endorsement, HSBC was not required to submit proof thereof. See id.; see also Schultz v. Aetna Bus. Credit, Inc., 540 S.W.2d 530, 532 (Tex. Civ. App.—San Antonio 1976, no writ). Moreover, because the Thompsons affirmatively stated on the record at trial tha......