Town North Nat. Bank v. Broaddus, B-7319

• Court: Supreme Court of Texas
• Writing for the Court: McGEE; GREENHILL
• Citation: 569 S.W.2d 489
• Parties: 24 UCC Rep.Serv. 924 TOWN NORTH NATIONAL BANK, Petitioner, v. Larry BROADDUS et al., Respondents.
• Docket Number: No. B-7319,B-7319
• Decision Date: 26 July 1978

Page 489

569 S.W.2d 489

24 UCC Rep.Serv. 924

TOWN NORTH NATIONAL BANK, Petitioner, v. Larry BROADDUS et al., Respondents.

No. B-7319.

Supreme Court of Texas.

July 26, 1978.

Wynne & Jaffe, Hubert A. Crouch, III, Dallas, for petitioner.

Parnass & Fowler, Walter W. Leonard, Irving, for respondents.

McGEE, Justice.

Town North National Bank, hereinafter referred to as the Bank, brought suit against Larry Broaddus, Terrell C. Taylor, and Charles W. Curtis, seeking to recover on a promissory note. Curtis was subsequently dismissed without prejudice because he was a defendant in bankruptcy proceedings. The trial court thereafter granted the Bank a summary judgment against Broaddus and Taylor. The court of civil appeals reversed and remanded. 558 S.W.2d 909. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

Broaddus and Taylor were co-makers, along with Curtis, on a promissory note to the Bank in the principal amount of $8,900. The note was executed on January 10, 1975, and became due on July 9, 1975. It provided for interest at the rate of 10 percent per annum. In September, 1975, a partial payment of $1,900 was made to the Bank which reduced the principal balance to $7,000. At that time, the due date on the note was extended to October 9, 1975. On November 25, 1975, the Bank demanded payment in full. Except for a subsequent partial payment of interest, the makers made no further payments, thereby leaving a balance of $7,231.02.

The Bank brought suit upon the note and moved for a summary judgment. In conjunction therewith, one of the Bank's officers, William Hudson, filed an affidavit in which he stated that he was competent to testify to every statement made therein and that the facts stated in the affidavit were within his personal knowledge and were true and correct. Attached to the affidavit was a copy of the note. Hudson stated in the affidavit that a true and correct copy of the note was attached and incorporated for all purposes. In this connection, we recently held that when a photographic copy of a promissory note is attached to an affidavit in which the affiant swears that the attached note is a true and correct copy of the original note, then the note is a sworn copy within the meaning of Rule 166-A(e) of the Texas Rules of Civil Procedure and is proper summary judgment evidence. Life Insurance Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378 (Tex.1978).

Broaddus and Taylor responded to the Bank's motion for summary judgment with an answer and affidavits which they contended, in conjunction with other instruments on file, raised genuine, material fact questions and issues with respect to their liability to the Bank. Each of them executed an affidavit which stated that Hudson, as agent for the Bank, explained to them that Curtis would have sole responsibility for payment of the note, the proceeds of which were to be used to purchase two cows, and that the Bank would not look to either of them for repayment. After reviewing the affidavits of all the parties, the trial court determined that there was an absence of a genuine issue of any material fact and rendered summary judgment on the Bank's behalf.

The court of civil appeals reversed and remanded on the ground that the affidavits of Broaddus and Taylor raised a fact question as to fraud in the inducement of the promissory note. Referring to Dallas Farm Machinery Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957), the court noted that there is an exception to the parol evidence rule which permits extrinsic evidence to show fraud in the inducement of a written sales contract. Section 3.306(2) of the Tex.Bus. & Comm.Code Ann. (1968) makes this rule applicable to actions on promissory notes, where, as we have here, the holder of the note is not a holder in due course. ¹ The court of civil appeals then cited as determinative of this case the decisions of Berry v. Abilene Savings Association, 513 S.W.2d 872 (Tex.Civ.App. Eastland 1974, writ ref'd n. r. e.) and Viracola v. Dallas International Bank, 508 S.W.2d 472 (Tex.Civ.App. Waco 1974, writ ref'd n. r. e.). Under the facts of those cases, it was held that the application of section 3.306(2) was proper and parol evidence was admissible to show that the maker of a note was induced by the false and fraudulent representations of the payee to sign the promissory note. While we recognize the validity of the rule announced in those decisions, we do not believe that Berry and Viracola are controlling under the facts of this case.

The question thus presented is whether, in a suit by one not a holder in due course against the maker of a promissory note, the parol evidence rule prohibits the admission of extrinsic evidence showing that the maker was induced to sign the note by the payee's representations that the maker would not incur liability on the note. We hold that the allegations of fact in the instant case, even if true, do not constitute fraud in the inducement so as to support an exception to the parol evidence rule.

In reaching this result, we have examined many Texas decisions concerning fraud in the inducement of promissory notes. From a study of these decisions, it appears that one rule prevails when there is only a representation to a maker, or surety, by the payee that he will not be liable; on the other hand, a different rule prevails in the instance where something more than just that representation is involved.

We begin our discussion of the issue presented with an examination of the authorities we consider to be controlling in this case. In these decisions there was, in essence, only a representation by the payee to a maker or surety that he would not be liable on the note. See Lanius v. Shuler, 77 Tex. 24, 13 S.W. 614 (1890); Mitcham v. London, 110 S.W.2d 140 (Tex.Civ.App. Austin 1937, no writ); Dean v. Allied Oil Co., 261 S.W.2d 900 (Tex.Civ.App. Waco 1953, writ dism'd); Jones v. Hubbard, 302 S.W.2d 493 (Tex.Civ.App. Waco 1957, writ ref'd n. r. e.); Howeth v. Davenport, 311 S.W.2d 480 (Tex.Civ.App. San Antonio 1958, writ ref'd n. r. e.); Fisher v. Howard, 389 S.W.2d 482 (Tex.Civ.App. Dallas 1965, no writ); McPherson v. Johnson, 436 S.W.2d 930 (Tex.Civ.App. Amarillo 1968, writ ref'd n. r. e.); Texas Export Development Corp. v. Schleder, 519 S.W.2d 134 (Tex.Civ.App. Dallas 1974, no writ). The rule from these cases is, quite clearly, that a negotiable instrument which is clear and express in its terms cannot be varied by parol agreements or representations of a payee that a maker or surety will not be liable thereon. As was stated by the court in Dean v. Allied Oil Co., supra, at 902 "But even had defendants offered proof under proper pleadings that plaintiff had induced defendants to sign the note by a false representation that he would not be personally liable thereon or made an agreement or had an understanding to that effect, and had the jury so found, it still would avail defendants nothing. An unconditional written instrument cannot be varied or contradicted by parol agreements or by representations of the payee that the maker would not be held liable according to the tenor of the instrument."

The decisions of Mitcham v. London, supra, and Howeth v. Davenport, supra, offer further insight into the question before us. In Mitcham, the court stated:

"As we understand appellee's contention upon this issue, it is that the fraud consisted in making the agreement not to hold the note as a personal obligation against him with the then present intention not to perform that agreement. . . . The promise here complained of as being intended not to be performed was a collateral one in parol at variance with the written contract entered into, and one proof of which the law does not admit. If fraud could be predicated upon such promise and intention, then any collateral parol agreement might be asserted to contradict, vary, or even abrogate any written contract, under the guise of a fraudulent intent not to perform such collateral parol agreement. The practical effect would be to destroy the parol evidence rule altogether." Mitcham v. London, 110 S.W.2d at 142.

Or, in the words of another court, a promissory note would be reduced to a "meaningless scrap of paper." Howeth v. Davenport, 311 S.W.2d 480, 482 (Tex.Civ.App. San Antonio 1958, writ ref'd n. r. e.).

The reasoning behind these cases was recently expressed in an opinion by the Dallas Court of Civil Appeals where it was noted that "(a) party to a written agreement (promissory note) is charged as a matter of law with knowledge of its provisions and as a matter of law cannot claim fraud when he is bound to the provisions unless he can demonstrate that he was tricked into its execution." Texas Export Development Corp. v. Schleder, 519 S.W.2d 134, 139 (Tex.Civ.App. Dallas 1974, no writ). The obligation of a maker who signs an instrument is clearly set out by the Uniform Commercial Code. See Tex.Bus. & Comm.Code Ann. § 3.413 (1968). Were we to deviate from the holdings of Schleder and cases similar to it by permitting extrinsic evidence of the type sought to be shown in this instance, the result would be uncertainty and confusion in the law of promissory notes. Therefore, under the facts of this case, we hold that the mere representation by a payee to the maker that the maker will not be liable on the note does not constitute fraud in the inducement so as to be an exception to the parol evidence rule. ²

In reaching its decision that parol evidence was admissible in this case, the court of civil appeals placed primary reliance on Berry v. Abilene Savings Association, 513 S.W.2d 872 (Tex.Civ.App. Eastland 1974, writ ref'd n. r. e.) and Viracola v. Dallas International Bank, 508 S.W.2d 472 (Tex.Civ.App. Waco 1974, writ ref'd n. r. e.). It is true that the rule to be taken from those two decisions is that when there has been a representation by the payee to the maker of a note that the maker will not be...