Tardio v. First Nat. Bank of Bryan

• Decision Date: 06 May 1914
• Docket Number: (No. 5280.)
• Citation: 166 S.W. 1180
• Parties: TARDIO v. FIRST NAT. BANK OF BRYAN.
• Court: Texas Court of Appeals

166 S.W. 1180

TARDIO v. FIRST NAT. BANK OF BRYAN.

(No. 5280.)

Court of Civil Appeals of Texas. San Antonio.

May 6, 1914.

Appeal from Brazos County Court; J. T. Maloney, Judge.

Action by the First National Bank of Bryan against Frank Tardio. From a judgment for plaintiff, defendant appeals. Affirmed.

W. M. Hilliard, of Caldwell, for appellant. V. B. Hudson, of Bryan, for appellee.

CARL, J.

The First National Bank of Bryan brought suit against appellant, Frank Tardio, on a note, alleged to have been executed and delivered by appellant to C. E. Edwards on September 15, 1911, for the sum of $350, payable on September 1, 1912, and bearing 10 per cent. interest per annum; and it was alleged that, before the maturity thereof, said note was transferred by Edwards to appellee, and further showed that same was entitled to a credit of $111.05 of date November 20, 1912. The defendant, Tardio, answered, pleading non est factum, and alleging that the note was a forgery. In reply to this, the appellee alleged in a supplemental petition that on or about August 24, 1912, appellant requested the bank to take up his $350 note held by C. E. Edwards, which it is alleged appellant represented he had given for rent, and that same was a valid, subsisting, and unpaid claim against Tardio which he then and there promised to pay at maturity; that thereafter the bank did take up said note from Edwards; and that appellee was present at the time said note was taken up by the bank at his request; and that same was so taken up at the special instance and request of Tardio. It is further alleged that appellant has since ratified and confirmed the transaction, in that on November 20, 1912, he paid thereon $111.05, which was indorsed thereon as a credit; that, if said note is a forgery, the bank had no notice of the same, and was an innocent purchaser, without notice, for a valuable consideration and at the instance and representation of Tardio that same was a genuine instrument, and was for rents for 1912; and that Tardio did not inform the bank that same was a forgery, but represented it to be a true and valid instrument, binding on him (appellant), and that Tardio was responsible for appellee's buying the note. The defendant below denied these matters in a supplemental answer.

The trial was before the court, and the findings of fact are, in substance, as follows On August 24, 1912, the defendant went to the First National Bank of Bryan and told H. O. Boatwright, its president, that he owed C. E. Edwards a rent note for the sum of $350 which would be due September 1, 1912, and which he could then pay, but that Edwards was insisting on the payment of the same, and that it would be an accommodation to him if Boatwright would take up said note, thereby relieving him of worry and harassment that Edwards was causing him. Thereupon Boatwright consented to take it up, and Tardio left the bank, and in a short while returned in company with Edwards. Boatwright asked them if they had the note, to which Edwards replied that he did not have it then but would get it. Appellant and Edwards left the bank together, and, while Edwards was gone for the note, Tardio came into the bank two or three times inquiring if Edwards had returned with the note. In about 30 minutes Edwards and appellant came into the bank together, and Boatwright asked Tardio if they had the rent note, to which he replied that Edwards had it. In the presence of Boatwright and Tardio, Edwards indorsed a rent note purporting to be defendant's note, and Boatwright, in the presence of both the others, took the note and paid Edwards $350, the face value of the note. It was at the special instance and request of Tardio and upon his statement that he would pay said note at maturity that Boatwright agreed to take it up, and appellant was with Edwards when he came into the bank, saw him indorse and deliver the note to the bank, and saw the money paid to Edwards. Tardio turned over to the bank two bales of cotton on August 24, 1912, to be applied as a payment on the note. The note is a forgery, but the bank had no notice that it was a forgery until about September 1, 1912, when the defendant came into the bank and told Boatwright the note was a forgery, but then and several times thereafter promised to pay the same, after he knew it was a forgery. He had never disclaimed the debt prior to the suit. The receiver of the estate of C. E. Edwards got the proceeds of the sale of the cotton left by defendant, but afterwards left $111.05, representing the sale price of the cotton, with the bank which was entered as a...