Trezevant & Cochran v. R. H. Powell & Co.

• Decision Date: 29 April 1910
• Citation: 130 S.W. 234
• Parties: TREZEVANT & COCHRAN v. R. H. POWELL & CO. et al.
• Court: Texas Court of Appeals

130 S.W. 234

TREZEVANT & COCHRAN v. R. H. POWELL & CO. et al.

Court of Civil Appeals of Texas.

April 29, 1910.

On Motion for Rehearing, June 4, 1910.

Appeal from Angelina County Court; J. T. Maroney, Judge.

Action by J. T. Trezevant and another, composing the firm of Trezevant & Cochran, against R. H. Powell and another, composing the firm of R. H. Powell & Co. and another. From a judgment in favor of certain of the defendants, plaintiffs appeal. Affirmed in part, reversed and rendered in part, and reversed and remanded in part.

Crane, Seay & Crane, for appellants. Martin Feagin, for appellees.

PLEASANTS, C. J.

Appellants J. T. Trezevant and Sam P. Cochran, composing the firm of Trezevant & Cochran, brought this suit against the firm of R. H. Powell & Co., a firm composed of R. H. Powell and N. G. Charlton, and against C. A. Burke, to recover upon a promissory note for the sum of $669.87, alleged to have been executed by said firm of Powell & Co. and indorsed by C. A. Burke. The defendant R. H. Powell filed no answer. The defendant N. G. Charlton answered by general demurrer and general denial, and by special answer under oath averred that he was not at the time of the execution of the note sued upon, nor was he at the date of the suit, nor was he for a long time prior to the execution of said note, a member of the firm of R. H. Powell & Co., and he further pleaded that appellants had notice of this fact. He further answered that he did not execute the note sued upon, and that he was not interested in, and did not authorize the use of, his name, influence, or credit, nor make any obligation, nor authorize any other person to make any obligation for him by which he could be bound, or otherwise, with the appellants, or any other person, as a member of the firm of R. H. Powell & Co., and that if said note was made and accepted on the faith of his credit, or on the representation that he was a member of the firm of R. H. Powell & Co., said representations, if any, were false, and unauthorized on his part, all of which appellants well knew at the time said obligation was created. The defendant Burke answered by general demurrer, general denial, and specially pleaded that at the time of the execution of the instrument sued upon he "indorsed the note as surety with the distinct understanding that the firm of R. H. Powell & Co. was composed of the constituent members, R. H. Powell and N. G. Charlton, and that, had he have known that said firm was not so composed, he would have refused to have become surety on said note for R. H. Powell only, for that he reposed great confidence in the said N. G. Charlton and in his integrity, and looked to him to protect said instrument, and indorsed said note as surety as aforesaid by reason of said great confidence in said N. G. Charlton, and that at said time he had the right to believe that the said Charlton was still a member of said firm, having known theretofore that said Charlton was such member, and that there had been no notice of any character given of the withdrawal of said Charlton from said firm; and, further, the defendant herein shows to the court that the plaintiffs herein were well aware of the withdrawal of said Charlton from said firm, which said matter was wholly unknown to the defendant herein, and that said plaintiffs herein, as well as said Powell and Charlton, withheld all information of the withdrawal of said Charlton from said firm, whereby the said Burke was induced to indorse it as surety for the said R. H. Powell & Co., and that, therefore, such indorsement was for a different concern from that for which he indorsed, wherefore, he says that by reason thereof he cannot be held hereon." The defendant further pleaded that, in the event appellants recovered against him as indorser and surety, he, Burke, should have judgment against R. H. Powell and N. G. Charlton jointly and severally for such an amount as might be found against him.

Plaintiffs in a supplemental petition interposed general and special demurrers to each of said answers, which were by the court overruled, and answered, further, that on or about the date when the note in suit was executed the firm of R. H. Powell & Co. was indebted to plaintiffs in the sum stated in the note; that on or about said date plaintiffs called upon the firm of R. H. Powell & Co. to pay the amount due aforesaid, and that plaintiffs, in payment of said indebtedness, accepted of the said firm of R. H. Powell & Co. said note; that plaintiffs were in no wise connected in securing the indorsement of the defendant Burke; that the defendant R. H. Powell procured the indorsement of Burke, and that plaintiffs knew nothing of the alleged circumstances pleaded by the defendant C. A. Burke until after the maturity of said note. Plaintiffs further alleged that if the defendant C. A. Burke, through fraud of the defendant Powell, if any, was induced to indorse the note, plaintiffs were innocent, and had no knowledge or notice of said fraud, if any, and in no wise participated in or were parties thereto; that, therefore, plaintiffs were innocent holders of said note for value and were in no wise responsible or liable for any fraud on the part of the defendant R. H. Powell in procuring the signature of the defendant Burke, nor was said fraud, if any, imputable to plaintiffs. A trial was had before a jury,...