Seale v. Nichols
| Decision Date | 06 February 1974 |
| Docket Number | No. B--3999,B--3999 |
| Parties | 14 UCC Rep.Serv. 457 Henry L. SEALE, d/b/a Seale Enterprises, Petitioner, v. Carl V. NICHOLS, d/b/a the Fashion Beauty Salon, Respondent. |
| Court | Texas Supreme Court |
Irion, Cain, Magee & Davis, M. R. Irion, Dallas, for petitioner.
Hunter & Greenfield, Bill C. Hunter and Timothy J. Vineyard, Dallas, for respondent.
This action was brought by Henry L. Seale, d/b/a Seale Enterprises, for recovery on a promissory note made payable to him by the defendant Carl v. Nichols, d/b/a The Fashion Beauty Salon. Plaintiff's motion for summary judgment on the note was granted by the trial court. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. It held that defendant Nichols' summary judgment proof raised a fact issue requiring a trial on the merits. 493 S.W.2d 589. We reverse the Court of Civil Appeals and affirm the trial court's judgment for the plaintiff Seale.
The promissory note in question is on a printed form and begins, 'I, we or either of us, promise to pay (to Seale).' It is signed as follows:
THE FASHION BEAUTY SALON
Carl V. Nichols (typewritten)
Carl V. Nichols (handwritten)
Seale filed suit against Carl V. Nichols, individually, and doing business as THE FASHION BEAUTY SALON, for recovery of the balance owed on the note. Nichols answered, saying that THE FASHION BEAUTY SALON had been the assumed name of Mr. Carl's Fashion, Inc., a Texas corporation now defunct, and that he had signed the promissory note in his capacity as president of the corporation, not in his individual capacity.
Plaintiff Seale then filed a motion for summary judgment supported by a sworn copy of the note and his affidavit in which he stated that he was the present owner and holder of the note; that it was in default; and that there was an unpaid balance of a particular amount.
In response, defendant Nichols filed the following affidavit:
'My name is Carl V. Nichols, and I served as President of Mr. Carl's Fashion, Inc., a Texas corporation, doing business as the Fashion Beauty Salon at 2115 Sherry Lane, Dallas, Texas, from the date of its incorporation, January 14, 1960, and I signed the promissory note attached to Plaintiff's Original Petition marked Exhibit 'A' in the capacity of officer of such corporation and in behalf of such corporation and not in my personal capacity.'
It has been the contention of Nichols throughout that he was not obligated on the note because he signed as a representative of the corporation and not as an individual. Seale has responded that the signature on the note was unambiguous and that extrinsic evidence was not admissible to show this alleged representative capacity. Seale also points out that (1) the note does not show that Nichols signed in a representative capacity; i.e., the word 'by,' or other similar word, does not appear before his signature under the name of The Fashion Beauty Salon; and (2) the name of the 'person represented' by Nichols is not shown in the note; i.e., the 'person' Nichols says is 'represented' is a corporation, Mr. Carl's Fashion, Inc. That name does not appear in the note. The 'person' shown as 'represented' in the note is The Fashion Beauty Salon, which turns out to be an assumed name.
Consequently, much of the controversy before this court has centered on the applicability of provisions of the Texas Business and Commerce Code, 1 particularly Section 3.403(b)(2), V.T.C.A. Section 3.403 reads:
'(a) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
(b) An authorized representative who signs his own name to an instrument
(1) is personally obligated if the instrument neither names the Person represented nor shows that the representative Signed in a representative capacity;
(2) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity. (emphasis ours)
(c) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.'
Nichols asserts that his signature comes within the meaning of subsection (b) (2) in that the person he represented Was named (though with an assumed name), but the note did not expressly show his representative capacity. He contends that this subsection, therefore, entitles him to prove his representative capacity by parol evidence.
We find it unnecessary to decide these problems because we have concluded that the summary judgment affidavit of Nichols is insufficient to raise a fact issue upon the affirmative defense of representation on which Nichols relies. Under the authorities set out below, the summary judgment proof offered by Nichols is insufficient to defeat the motion for summary judgment of Seale: i.e., Nichols has no summary judgment 'proof' which would entitle him, as an individual, to come within the exceptions to personal liability set out in the Business and Commerce Code.
As we interpret the code, a person signing a promissory note is presumed to be personally obligated to the holder thereof unless he, as the maker, interposes a defense sufficient to relieve himself of the obligation. Business and Commerce Code, § 3.307(b); Anderson v. The Industrial State Bank of Houston, 478 S.W.2d 215 (Tex.Civ.App.--Houston 1972, writ ref. n.r.e.). Nichols has admitted in his pleadings the execution of the note and his signature. Consequently, Seale, without more, was entitled to a summary judgment upon the basis of his summary judgment proof unless a defense was raised.
Nichols' asserted...
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