Wheelock v. Mayfield

HALL, J. Appellant sued upon a promissory note for $400 to recover against G. W. Burkett as maker, and W. D. Mayfield as in-dorser and guarantor. The note is payable to the order of W. D. Mayfield, and was indorsed by him as follows: “For value received I, or we, hereby guarantee payment of the within note at maturity and at all times thereafter, and waive demand, protest and notice of nonpayment thereof.” There is also a transfer of the vendor’s lien retained in the note signed and acknowledged by Mayfield. This transfer of the vendor’s lien also includes the transfer of the note. Mayfield set up failure of consideration, and only this issue was submitted to the jury. The jury found that there was no consideration, and the only assignment of appellant’s brief insists that this finding is not supported by the evidence, and is contrary to law. Appellant testified that he was a *476 real estate broker; tbat Mayfield listed tbe land with him and promised to pay bim 5 per cent, commissions, and tbat Mayfield sold tbe land for $1,400; tbat several days after the land was sold be called on Mayfield for his commissions and was told tbat Mayfield did not have tbe cash, and upon Mayfield’s suggestion, be accepted the note sued upon, which was indorsed by Mayfield at tbat time in full of appellant’s claim for commissions. Mayfield testified with reference to tbe transaction as follows: “At the time I turned the note over to Mr. Wheelock I signed my name on the back of it to make it good at the solicitation of Mr. Whee-lock and simply as a matter of accommodation to enable Mr. Wheelock to get him a home. Mr. Wheelock was then on a trade for a home, and said that if I would indorse the note that it would make it good so that he could use it in trading it to the other fellow. I have forgotten the name of the fellow Mr. Wheelock was trading with. He made the trade a few days after I indorsed the note. The trade went through and Wheelock lived in the house some time, but afterwards he had to take up the note sued on. The same was returned to him when he failed to pay for the house. At the time I indorsed the note to Mr. Wheelock I did not owe him anything. I did not employ him as a real estate agent to find a purchaser for me, and did not promise him a 5 per cent, commission for selling the land. Prior to the time I indorsed the note to Mr. Wheelock he and I had a conversation about SO acres of land that I had in Pecos county, and we agreed that we would both try to sell the land, and that in case either one found a purchaser I was to divide with Mr. Wheelock my excess above my equity in the land. My equity in the land was $600, and I sold it for $1,400 above what was already against the land. I got a half interest in a drug store at Altus, Okl., and two notes for $400 each. I considered that the two notes of $400 each were the profit, and I gave one of the $400 notes, being the one sued on, to Mr. Wheelock, as his part in the transaction. Both of us tried to sell the land, but I was the one that made the sale to Burkett, and I closed the trade in Altus. In a week or two after the trade was closed I turned over to Mr. Wheelock the note sued on and signed my name on the back thereof, as stated above.” By deposition appellant testified in part tbat be took tbe $400 note for bis services in assisting Mayfield toward tbe sale of the land in Pecos to tbe purchaser, Burkett. As stated, tbe note was payable to tbe order of Mayfield, and to perfect tbe transfer it was necessary for Mayfield to indorse it. Under bis pleadings be bad tbe right to explain tbe nature of bis indorsement. Tbe general rule with reference to such indorsements is tbat the indorser is not responsible. As stated by Bonner, Justice, in Hanrick v. Alexander, 51 Tex. 502: “If the indorsement by Hanrick of the note sued on was simply to transfer the right of action thereon to Blocker without recourse on Han-rick, this, as between him and Mrs. Alexander and the children of Blocker, would be a sufficient defense to recovery by them of a personal judgment against Hanrick. Wade v. Wade, 36 Tex. 529.” Tbe jury evidently accepted Mayfield's statement of tbe contract with Wheelock that tbe profits realized by Mayfield over and above bis equity should be divided between Wheelock and Mayfield. These profits consisted of the two notes. Under Mayfield’s statement of tbe contract, accepted by the jury, Wheelock was entitled to one of tbe notes, whatever its value might be. He bad no right to insist .that Mayfield should add bis personal indorsement and guaranty to it. Tbe briefs presenting simply an issue of fact and this issue having been determined by tbe jury in favor of appellee, we will not disturb it. Tbe judgment is affirmed.