Wise v. Boyd

• Decision Date: 12 November 1924
• Docket Number: (No. 2377.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 267 S.W. 543
• Parties: WISE v. BOYD et al.
• Court: Texas Court of Appeals

267 S.W. 543

WISE v. BOYD et al.

(No. 2377.)^*

Court of Civil Appeals of Texas. Amarillo.

November 12, 1924.

Rehearing Denied December 31, 1924.

Appeal from District Court, Wilbarger County; J. V. Leak, Judge.

Action by J. A. Wise against Rex Boyd and B. S. King. From judgment for defendant King, plaintiff appeals. Reversed and rendered.

Yarbrough & Tipton, of Electra, Cook, Cook & Cole, of Vernon, and Weeks, Morrow & Francis, of Wichita Falls, for appellant.

Bonner & Storey, of Vernon, and Turner & Dooley, of Amarillo, for appellees.

BOYCE, J.

J. A. Wise brought this suit against Rex Boyd and B. S. King on a note executed by said defendants, payable to I. G. Showers, and by him indorsed and transferred to plaintiff. Boyd did not answer. The defendant King contested recovery as against him on grounds hereinafter stated. The trial judge directed a verdict against Boyd, but in favor of defendant King, and judgment was rendered accordingly.

It is conceded that if the pleading and evidence made an issue as to King's liability on the note, a matter which we discuss later, yet the peremptory instruction could not be sustained on such ground, because the evidence thereon was conflicting. The instruction, appellee suggests, was given on the theory that the evidence failed to sustain plaintiff's allegation of ownership of the note, and we will dispose of this question first.

The plaintiff, in his petition, after setting up the execution of the note, alleged "that said note is now owned and held by the plaintiff herein, J. A. Wise, he having acquired same from the said I. G. Showers in due course, for a valuable consideration, and before maturity, and the said J. A. Wise has the right to bring and prosecute said suit." Both Showers and Wise testified at the trial as to the indorsement and delivery of the note to Wise; the substance of their testimony is that it was agreed at such time that Wise was to collect the note, and then have the privilege of borrowing the money so collected from Showers for one year. That Wise would have the right under these facts, subject to any defenses as against Showers, to maintain the suit and recover on the note is not open to question. McMillan v. Croft, 2 Tex. 397; Brown v. Chenoworth, 51 Tex. 469; Jackson v. Fawlkes (Tex. Sup.) 20 S. W. 136; Gray v. Altman (Tex. Civ. App.) 149 S. W. 760; Negotiable Instruments Act, §§ 51, 191 (Vernon's Texas Statutes, 1922 Supplement, arts. 6001 — 51, 6001 — 191). The appellee concedes this, but insists that under the pleading plaintiff must have shown that he was the absolute beneficial as well as the legal owner of the note, otherwise, there is a variance between the allegata and probata. If it be that the allegations should be construed as an affirmance of ownership of all beneficial interest in the note, yet we are of the opinion that this should not defeat plaintiff's right to recover on the pleading. Sufficient of the allegations of the pleading are established without variance to entitle him to sue on the note. The fact that he alleged more than was necessary, and failed to establish these surplus allegations, does not preclude recovery. Collins v. Chipman, 41 Tex. Civ. App. 563, 95 S. W. 667 (13); Ellerd v. Murray (Tex. Civ. App.) 247 S. W. 636 (12-14).

This conclusion would result, in any event, in the reversal of the judgment; but in order to determine whether judgment should be here rendered for appellant, it becomes necessary to consider the pleading of the defendant King, and the evidence offered in support thereof, to ascertain whether a good defense against liability on the note is presented thereby.

King pleaded that Showers sold certain cattle to Rex Boyd; that the cattle were delivered and a note signed by Rex Boyd accepted in payment; that afterwards, without prior agreement therefor at the time of closing said cattle transaction, and without other consideration to the defendant King, or to Boyd, the said King signed the original note as an accommodation surety; that at such time Showers stated "that he would not hold said King liable on said note, nor expect him to pay it, and would not sue him or try to hold him liable thereon, except in the event the said Boyd should die before the maturity of the note." That he was induced by this promise to sign said note, and but for such promise would not have signed it; "that said representations were not true, but were false and were fraudulently made with the intention of the said Showers at the time not to carry them out." That when such original note became due, he signed a renewal, the note sued on, with Boyd, "still relying on said fraudulent representations of the said Showers, and, * * * supposing at the time he signed the renewal note that he was liable on the original note and not knowing that he had a valid defense thereto." King, in his answer, also denied that plaintiff is an innocent purchaser of the note.

There was a conflict in the evidence as to whether the original note was signed by King before or after the delivery of the cattle to Boyd, and as a part of the agreement for the sale thereof. The testimony was also sharply conflicting as to whether there was an oral understanding when the first note was signed that King was not to be liable on it except on the condition alleged by him. When the first note became due, payment was demanded of King; he testified that he then called Showers' attention to the prior oral understanding as to his liability, though Showers denies this; there is no evidence that Showers, at the time, conceded that such an oral agreement was made, King's testimony being to the effect that Showers neither affirmed nor denied it. King said that when he signed and executed the note, "he still expected Showers to live up to his contract," and would not have signed it otherwise. He further testified:

"If I had been informed at that time that I was not legally liable on that [the original] note, I would not have signed it; I thought I was responsible on the whole thing."

If it be true that the original note was signed by King after the transaction between Boyd and Showers had been closed, then he would not have been liable thereon, because there was lack of consideration for his contract. But the extension of time of payment, secured by the renewal note which he signed, was sufficient consideration to give binding force to his agreement. Bonner Oil Co. v. Gaines, 108 Tex. 282, 191 S. W. 552; People's State Bank v. Fleming-Morton Co. (Tex. Civ. App.) 160 S. W. 648. The fact that he may not have known that he was not liable on the original note could not affect the question, there being no claim that his misunderstanding of his legal rights was induced by any act of the other party to the contract.

The parol agreement, if made, that King should not be liable on the note, except in case of Boyd's death, was contradictory to the terms of the note which contained an absolute promise to pay at a stated date, and falls within the parol evidence rule, unless it be that the allegation that the agreement was made with no intention at the time of keeping it, and its subsequent breach makes a case of fraud that will avoid its application. Roundtree v. Gilroy, 57 Tex. 176; Dolson v. De Ganahl, 70 Tex. 620, 8 S. W. 321; Hendrick v. Chase Furniture Co. (Tex. Civ. App.) 186 S. W. 277; Waters v. Byers Bros. & Co. (Tex. Civ. App.) 233 S. W. 572, 586-590; Chalk v. Daggett (Tex. Com. App.) 257 S. W. 228. The opinions in the two cases last cited contain elaborate reviews of the authorities on this subject, and are cited in lieu of a more extended reference to authorities in this opinion.

This parol agreement does not, in the opinion of the majority, evidence a conditional delivery — the delivery was unconditional, the agreement merely contradicts the terms of the writing as to payment. So that, in our opinion, both under the old law and under the provisions of the Negotiable Instruments Act, evidence of this parol agreement could not be admitted. Chief Justice Hall dissents from the conclusion just stated, and is of the opinion that section 16 of the Negotiable Instruments Act has made a change in the parol evidence rule as applicable to negotiable instruments, and as announced in the Texas cases referred to by us as authority. A similar question as to the meaning of said law arose in the case of Waters v. Byers Bros., supra, and the majority of the court then held contrary to the view taken by Judge Hall. The majority of the court as it is now constituted adheres to the majority conclusion in the Waters v. Byers Case. The writer of the present opinion wrote the majority opinion in that case, and we here refer to that opinion for a restatement of our views as to this question. See 233 S. W. 588, 589 (5-7). In this connection we cite as additional authority the case of Security Savings Bank v. Rhodes, 107 Neb. 223, 185 N. W. 421, 20 A. L. R. 412, decided after the decision in Waters v. Byers Bros. We refer also to the elaborate note in 20 A. L. R., beginning at page 421 — the Waters-Byers Case is discussed in this note.

The appellees' principal contention is that the parol agreement, made without intention of performance, and its breach constitutes such fraud as will take the case out of the parol evidence rule. It is true that in some instances a promise to be performed in the future, made with no intention of performance, may sustain a charge of fraud; such rule was evolved in the development of the law of fraud, and as an exception to the general rule that fraudulent representations that will avoid a contract must be as to existing facts. But this rule cannot logically be applied to an oral agreement made in connection with a written agreement, and which contradicts the terms of the writing, for the reason that in such case the parol evidence rule precludes the proof of the oral agreement, so that there is no foundation on which to build the fraud...