Austin v. McShane

WILLSON, O. J. (after stating the facts as above). When the banking commissioner took charge of the insolvent bank for the purpose of liquidating its affairs, he acquired only such rights as to the notes sued upon as the bank had against the makers thereof. Brady v. Cobbs (Tex. Civ. App.) 211 S. W. 802; Hall v. Bank (Tex. Civ. App.) 255 S. W. 506; Chapman v. Clark (Tex. Civ. App.) 262 S. W. 161; King v. Wise (Tex. Com. App.) 282 S. W. 570; Austin v. Sisk (Tex. Civ. App.) 283 S. W. 535. These notes were renewals of the note for $6,758.90 made by N. A. Shaw and the appellees other than Mrs. Corinne Shaw March 14, 1922. Appel-lees insist, and appellant agrees, if the $6,-758.90 note was without consideration because made solely for the accommodation of the bank, that the notes sued upon, because mere renewals of said $6,758.90, also were without consideration. If they were, then the bank, for that reason, could not have recovered on them in a suit against appellees (Bank v. Ford [Tex. Civ. App.] 152 S. W. 700; Brady v. Cobbs [Tex. Civ. App.] 211 S. W. 802; 8 C. J. 259, and authorities there cited); and, if it could not, the banking commissioner, being in no better position to do so than it was in, was not entitled to recover as he sought to do. As shown in the statement above, one of 'the findings of the jury was that the note of March 14, 1922, was executed by N. A. Shaw and appellees, except Mrs. Corinne Shaw, “solely as an accommodation to the bank, and to save it a loss on loans it had made to Garland.” Contrary to the contention of appellant, we construe the effect of the finding to be to determine that said note of March 14, 1922, was without a consideration, as appellees insisted it was. Trust Co. v. Brady, 165 Mo. 197, 65 S. W. 303; Woodbury v. Glick, 151 Iowa, 648, 132 N. W. 67; In re Tasker’s Estate, 182 Pa. 122, 37 A. 924; Vitkovitvh v. Kleinecke, 33 Tex. Civ. App. 20, 75 S. W. 544; 8 C. J. 259. Appellant insists, however, that, if such was the effect, of the finding, it was unwarranted, because, he says, it conclusively appeared from the testimony that said note of March 14, 1922, was made for Garland’s accommodation, and not for the accommodation of the bank; and, further, that it appeared that the transaction between Tayloe and the bank, in which the latter paid the former the amount of interest Garland owed him, was unlawful as to the bank because in effect a loan by it of the amount of the interest to Garland at a time when he was already indebted to it in a sum as great as it could loan him without violating the statute (article 529, Vernon’s Statutes), forbidding such a bank from lending to one person a sum in excess of 25 per cent, of its capital stock and surplus. As we view the record, the jury had a right to find to the contrary of appellant’s contention, as státed, and to say from testimony referred to in the statement above that N. A. Shaw and the appellees who executed said note of March 14, 1922, did so without any consideration to themselves, and solely for the purpose of aiding the bank in protecting security it had for indebtedness Garland then owed it (amounting to more than $15,000), by enabling the bank to borrow on their credit the $6,75S.90 necessary for it to use in buying Tayloe’s claim against Garland for past-due interest, and thereby avoiding the prosecution by Tayloe of a foreclosure suit and a sale of the land constituting such security. If the jury had such a right, we think it cannot be said that the finding in question was unwarranted. Appellant not only insists that the finding was without evidence to support it, if it is construed as a finding that said note of March 14, 1922, was without a consideration, but insists that the jury determined to the contrary, and that said note was supported by a sufficient consideration, when they found, as is shown in the statement above, that N. A. Shaw and the appellees, except Mrs. Corinne Shaw, agreed that the $6,758.90 interest due Tayloe by Garland “might be paid out of the assets of the bank, with the understanding that their note should be ex *708 ecuted to .represent and secure the bank in the payment thereof.” We agree that the effect of the finding last referred to was to determine that said note of March 14, 1922, was supported by a sufficient consideration. It follows that, as'we construe the two findings in question, they are in conflict with each other. If they are, the judgment is erroneous, for in that event a judgment in favor of either appellant or appellees was not warranted. The trial court should have refused to receive the verdict, and required the jury to consider the ease further, or, having received it, should have set aside the findings and directed a new trial. Railway Co. v. Wilkerson (Tex. Civ. App.) 224 S. W. 574; Oil Co. v. Strauss (Tex. Civ. App.) 243 S. W. 528; Puckett v. Davis (Tex. Civ. App.) 238 S. W. 367. The judgment will be reversed, and the cause will be remanded to the court below for a new trial.