Turner v. Patterson

• Decision Date: 25 March 1909
• Citation: 118 S.W. 565
• Parties: TURNER v. PATTERSON et al.
• Court: Texas Court of Appeals

118 S.W. 565

TURNER v. PATTERSON et al.

Court of Civil Appeals of Texas.

March 25, 1909.

Rehearing Denied April 15, 1909.

Appeal from District Court, Borden Countty; James L. Shepherd, Judge.

Suit by W. H. Turner against W. H. Patterson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. H. Peebles, Turney & Lewis, and Morrison & Morrison, for appellant. Curtis & Hancock, for appellees.

HODGES, J.

This appeal is from a judgment dissolving a temporary restraining order theretofore issued, and refusing a writ of injunction.

On December 9, 1907, the appellant filed in the district court of Borden county his petition for an injunction, alleging, in substance, the following facts: That W. H. Patterson, one of the appellees, resides in Dallas county, and is the manager of the Hartford Life Insurance Company, a foreign corporation engaged in the business of writing life insurance in Texas. That the other defendants, W. L. Evans and M. J. Thornton, are also agents of said company, and reside in Borden county, Tex. That on or about the 9th day of October, 1907, the said Patterson induced plaintiff to buy a policy of insurance for an annual premium of $174.50, representing that, in consideration of said premium, the insurance company would issue to him a policy on his life for $5,000, which would insure his life for that sum for 20 years, and, at the expiration of that time, said sum would be paid to plaintiff in cash if he were then living. That this representation was made by the defendants to plaintiff at the time and place aforesaid to induce him, and did induce him, to contract and agree with the defendants, as agents of the corporation aforesaid, to buy such $5,000 insurance policy. Relying upon the promise that he would obtain a policy payable to him at the end of 20 years, in consideration thereof he executed his note, dated February 12, 1907, for $174.50, payable to the order of W. H. Patterson at Dallas, Tex., on the 1st day of July thereafter, without grace, said note to bear interest after maturity at 10 per cent. per annum, and also providing for the payment of attorney's fees if it should be placed in the hands of an attorney for collection. Plaintiff further alleges that after he signed said note, and before its delivery to Patterson, Evans and Thornton, two of the defendants in the suit, signed the same as sureties, writing their names on the back thereof, and then delivered the note to Patterson. That, when the insurance policy which he understood he was to receive from the agents of the insurance company was tendered to him in fulfillment of his said contract and agreement, he found that it was not such as he had contracted for, but that it was merely one which would become nonpremium bearing after 20 years, and payable only upon his death. That he thereupon returned the tendered policy and demanded the surrender of his note, but that the appellees refused to surrender the note, though the consideration had wholly failed. He further avers that Patterson, with full knowledge of all the facts alleged, wrongfully and fraudulently withheld said note from him, and on or about June 19, 1907, deposited the same with the American Exchange National Bank of Dallas, Tex., for collection, which bank thereupon forwarded the same to a bank at Gail, in Borden county, for collection. That, after appellant had learned that the note was at the Gail bank, his attorney at once proceeded to prepare and file suit against the necessary parties to cancel the note. That when Thornton, one of the appellees, learned that said suit was in course of preparation, and in order to prevent the fraud from being exposed in Borden county and injuring his business, he did on June 26th, as a mere volunteer, pay off and extinguish the note, and that Patterson received the proceeds thereof before action could be taken in the said suit. Plaintiff alleges that he is informed and believes and charges the fact to be that the note was by the Gail bank stamped, "Paid, June 26, 1907," the day Thornton paid the same with his personal check. He further charges as a fact that several days after said note was paid and canceled as aforesaid Thornton had said Gail bank make on said note the following entry: "Paid by M. J. Thornton. J. D. Brown, Cashier." Appellant alleges that, if he is in error in stating that Patterson deposited said note with the American Exchange National Bank at Dallas, Tex., for collection, he then avers that Patterson negotiated said note in due course of trade to the American Exchange National Bank of Dallas, Tex., to which said Thornton as surety or volunteer, or as both, paid said note as aforesaid, extinguishing same.

The appellant further avers that if Thornton as surety, and not as a volunteer, paid said note without the frauds complained of, then in that event only the cause of action arose in his favor against plaintiff upon an implied promise to pay him the money paid by Thornton upon the note. He denies that he ever promised in writing to pay said Thornton, or any one else in Dallas county, Tex., the money by him paid on said note, and denies that any of the statutory exceptions exist authorizing any suit beyond Borden county and in Dallas county against plaintiff by any of defendants in reference to said note or on said implied promise, and claims the statutory right to be sued in the justice precinct and county of his residence. He further avers that, after the satisfaction of said note by Thornton, the defendants entered into some kind of a false and fraudulent arrangement wherein said...