Donnell v. Dennis

BROWN, Justice. Appellee, H. L. Dennis, brought suit in the district court of Montague county, alleging that Ralph Donnell and Isaac Donnell, on July 17, 1930, executed and delivered to him their joint promissory note, payable one year after date, in the sum of $500, bearing 10 per cent, interest and 10 per cent, attorney’s fees; that appellee could not give an exact description of the note because Ralph Donnell brought the executed instrument to appellee’s residence, and appellee gave him a check for $500, drawn upon the First National Bank of St. Jo, whereupon appellant, Ralph Donnell, proposed, as an accommodation to appellee, to take the note to said bank, for appellee, but that appellant did not deliver the note to such bank, 'and although demand having been made upon him, appellant has failed and refused to deliver such note to appellee; and that both makers, although demands have been made thereupon, have failed and refused to pay the same. « No exceptions to the pleading were urged. Appellant and Isaac Donnell answered by pleas of non est factum, and appellant pleaded that he in fact received a check from appellee on the date the note is alleged to have been made, but that such check was given him in a settlement had between him and appellee, growing out of an oil lease transaction. This appellee denied. The case being tried to a jury, the court submitted three special issues in the [823] charge (in substance): (1) Did Isaac Donnell sign the note in question payable to appellee? To which the jury answered: “No.” (2) Did appellant sign such a note? To which the jury answered: “Yes.” (3) Did appellant deliver such a note to appellee? To which the jury an1 swered: “Yes.” Appellant asked for a peremptory instruction, which was refused and exception taken. Appellee and appellant both moved for judgment after verdict. Appellant’s motion was denied and exception taken, and appellee’s motion was granted. The trial court rendered judgment that appellee take nothing against Isaac Donnell, but gave him judgment'on the noté ágainst appellant. Appellant urged his motion for a new trial; same was overruled, and he has appealed. The first assignment of error complains of the failure of the court to grant appellant’s request for a peremptory instruction, and the second, third, and fourth assignments of error complain of the failure to render judgment for appellant on his motion, timely made. The fifth assignment complains at the giving of special issue No. 2 over his timely objections, same being that the evidence is wholly insufficient to warrant the giving of such issue. There was sufficient evidence before the jury to raise the issues submitted, and it follows that none of the assignments of error are well taken, and same are overruled. Joffre v. Mynatt (Tex.Civ.App.) 240 S.W. 319. The judgment of the trial court is affirmed.