Wynnewood State Bank v. Brigham, 7903

• Decision Date: 08 October 1968
• Docket Number: No. 7903,7903
• Citation: 434 S.W.2d 874
• Parties: WYNNEWOOD STATE BANK, Appellant, v. Wanda Louise BRIGHAM, Appellee. . Texarkana
• Court: Texas Court of Appeals

Page 874

434 S.W.2d 874

WYNNEWOOD STATE BANK, Appellant, v. Wanda Louise BRIGHAM, Appellee.

No. 7903.

Court of Civil Appeals of Texas Texarkana.

Oct. 8, 1968.

Rehearing Denied Dec. 10, 1968.

Wm. Andress, Jr., Andress & Woodgate, Virgil R. Sanders, Sanders & Nolen, Dallas, for appellant.

Byron L. Falk, Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellee.

FANNING, Justice.

Appellee sued appellant and appellant filed a cross-suit. Appellant sought to foreclose its deed of trust lien securing a note executed in 1960 payable over a ten year period. Appellee, the widow of the maker of the note, contended to the effect that the indebtedness was cancelled for failure of appellant to perform an oral agreement to procure credit life insurance upon the life of her husband, the maker of the note.

On August 16, 1960, the decedent executed his note to the bank for $21,000.00 payable in monthly installments of $233.16 for a period of ten years, secured by deed of trust on real property. $2,000.00 of the loan was for the purpose of paying for credit life insurance of decedent for the term of loan. The bank bought credit life insurance for a five year period, using about half of the $2,000.00 for this purpose. However, when the five year period expired in August, 1965, the bank failed to renew or purchase an additional five year credit life insurance policy, or any other type of credit life policy on the life of Mr. Brigham, although Mr. Brigham had with said bank the balance of the $2,000.00 needed to purchase the credit life insurance. A cashier's check for $950.00 was left in Mr. Brigham's file by the bank for the purpose of paying the premium for the second five year credit life policy.

Mr. Brigham died in December, 1965. Payments were duly made on the note up to and including January, 1966. When appellee asked to have the note marked paid in full with the credit life proceeds she thought were forthcoming, appellant for the first time notified her that there was no credit life insurance in force. Appellee stopped making payments on the note, and appellant later posted the property for sale under the deed of trust. Appellee enjoined the sale and appellant filed a counter-claim for foreclosure and payment of the balance of the note.

Appellant plead the 2 and 4 year statutes of limitations, the statute of frauds, and plead to the further effect that Mr. Brigham was not in good health in August, 1965, and was then in effect not eligible for credit life insurance.

Trial was with the aid of a jury. In response to the special issues submitted the jury found to the following effect: (1) on or about August 16, 1960, the bank, at the time it loaned $21,000.00 to Brigham, retained $2,000.00 as premium money on credit life insurance on the life of Brigham; (2) that the retention of the said $2,000.00 was premium money on credit life insurance on Brigham for the full ten year period of the loan; (3) that on or about August 16, 1960, the bank, acting through its loan officer, agreed with Brigham to purchase credit life insurance on Brigam's life for the ten year period of the loan in question; (4) that on or about August 16, 1960, the bank, through its loan officer, agreed with Brigham to purchase credit life insurance on Brigham's life for two consecutive five year periods beginning with the date of the loan made by it to Brigham; (5) that from the time Brigham applied for the loan in question until the time of his death, no officer or agent of the defendant bank ever requested of Brigham a statement of his health in connection with any credit life insurance; (6) that no officer or agent of the bank ever applied at any time for credit life insurance of any type on the life of Mr. Brigham for any period after August 16, 1965, on the loan in question; (7) that no officer or agent of the bank, before Mr. Brigham's death, notified either Mr. Brigham or Mrs. Brigham that after August 16, 1965, there was no credit life insurance of any type on Mr. Brigham's life in connection with any unpaid balance of the loan in question; (8) that no officer or agent of the defendant bank made any attempt to return the $950.00 cashier's check in J. C. Brigham's loan file until after the death of Mr. Brigham; (9) that on or about August 16, 1965, Mr. Brigham was in good health; (10) that Mr. Brigham at the time of the loan did not disclose to the loan officer of the bank any impaired physical condition, if any, which he might have had before August 16, 1960; (11) that defendant bank's loan officer, at the time of the loan, had knowledge of any impaired physical condition, if any, of Mr. Brigham before August 16, 1960; (12) that after August 16, 1960, and before August 16, 1965 Mr. Brigham did not make known to any of defendant bank's officers or agents any heart attacks, if any, which he may have suffered, and any impaired physical condition, if any, which he might have had. (Conditionally submitted issue 13 was not necessary to answer and was not answered.)

The trial court entered judgment permanently enjoining the sale of the property, declaring the note paid in full, dismissed appellant's counter claim, ordered that appellant's said $950.00 cashier's check be returned to it, and costs were taxed against appellant bank. Appellant bank has appealed.

Appellant attacks only one finding of the jury as being supported by 'no evidence', to-wit, special issue No. 3, wherein the jury found to the effect that the bank agreed to purchase credit life insurance on the life J. C. Brigham for the ten year period of the loan. This attack constitutes appellant's first point.

Mr. Sargent, who was Vice President of appellant bank at the time of the loan in question, stated to the effect that appellant bank tacked on $2,000.00 to the amount of the loan which was for premium to purchase credit life insurance on the life of J. C. Brigham, and that the written ...