Merriman v. Swift & Co.

■.BUCK, J. Appellee sued appellant on nine flecks, aggregating $1,178.74, the dates of which ran from December 7, 1912, to June 9, 1¾13. After alleging that plaintiff was a corporation, with a permit to do business in the state, with its domicile in Tarrant county, and that defendant resided in Hardeman county, the charging portion of the petition is as follows: “For cause of action, plaintiff represents that on the respective dates hereinafter mentioned the defendant made, executed, and delivered to plaintiff at Ft. Worth, Tarrant county, Tex., certain checks, drawn upon the Exchange National Bank of Ft. Worth, Tex., said bank being in some of said checks referred to as the Exchange National Bank of North Ft. Worth, Tex.; said checks being signed, executed, and delivered by the defendant M. Merriman to and in favor of this plaintiff, payable to the order of this plaintiff, and being in amounts and executed and delivered on dates as follows: Check No. Date of Execution of Check. Amount. 31 December 7, 1912 $ 122 36 35 December 21, 1912 168 73 37 ’ December 28, 1912 142 28 44 January 4, 1913 101 b4 46 January 15, 1913 122 08 January 18, 1913 146 88 8 May 23, 1913 115 50 20 June 2, 1913 159 32 7 June 9, 1913 100 00 Total . $1,178 74 “The first six of said checks were drawn upon the Exchange National Bank of North Ft. Worth, and the remaining three thereof were drawn upon the Exchange National Bank of Ft. Worth,, Tex. “Plaintiff says that it received said checks for a valuable consideration, and presented same in due course of business to the bank on which same were drawn for payment, and payment thereof was refused by said bank, and said checks have never been paid by or through said bank or otherwise. “Plaintiff says that it is now the owner and holder of said several cheeks, and same are past due and wholly unpaid, and the defendant is indebted to the plaintiff thereon and by reason thereof in the aggregate sum of $1,178.74, with interest on each check since the date thereof.” In the prayer for relief plaintiff asked that it “do have and recover from the defendant, M. Merriman, for the amount of the aforesaid debt, with interest thereon, for costs of suit,” etc. Defendant urged a general demurrer, and specially excepted to plaintiff’s petition on the grounds: (1) That it nowhere alleged that defendant promised, either expressly or impliedly, to pay any amount to plaintiff, or that defendant became liable to plaintiff in any amount; (2) that it appeared from said petition that plaintiff’s cause of action, if any, was barred, both by the two years, and the four years’ statute of limitation. He acknowledged that he executed the checks mentioned in plaintiff’s petition, but denied liability thereon. He further alleged that he executed the cheeks conditionally, and that by agreement with plaintiff’s creditman and agent, Mr. Cunningham', it was understood and agreed that defendant would not be liable thereon unless he became financially able to pay said checks, and that it was further agreed that the checks would not be presented to the bank upon which they were drawn until he (the defendant) was so financially able and should sa notify said Cunningham; that the checks were all postdated, and each was delivered •to plaintiff on a date prior to that shown on the check; and that he had never been finan *776 cially able since tbe issuance of said checks to pay tbe same. Tbe court overruled tbe general demurrer and tbe special exceptions, and, after tbe evidence was concluded, instructed a verdict for plaintiff. From tbe judgment based thereon, tbe defendant has appealed. [1] Tbe first assignment is directed to tbe overruling of tbe general demurrer. We think in tbis action there was no error. While tbe petition is not so full or detailed as it might be, we think it is sufficient. We have examined every decision relied on by appellant to support tbis assignment, and do not think tbe petition in tbis case is subject to tbe criticism made in a single case cited. Appellants cite Jennings v. Moss, 4 Tex. 452; Frazier v. Todd, 4 Tex. 461; Malone v, Craig, 22 Tex. 609; Whitaker v. Record, 25 Tex. Supp. 382; Reeves v. Miller, 28 Tex. 578; Flaxman v. Rice, 65 Tex. 430; Colbertson v. Beeson, 30 Tex. 76. For instance, in tbe Jennings Case tbe petition fails to allege tbe execution by defendant of tbe note sued on. In Frazier v. Todd and Flaxman v. Rice tbe ownership of tbe note by plaintiff was not alleged. In Malone v. Craig it was not shown to whom tbe notes were executed. But none of these deficiencies is here shown. Hence ■we overrule tbis assignment. [2] We do not think the second assignment is sufficient to require consideration, it being as follows: “Based upon paragraph 2 of defendant’s amended motion for new trial (Tr. p, 14). Plaintiff must allege, in his petition, some act of defendant creating a legal liability on his part, and a petition which relies upon an implied contract as the basis of a cause of action must specifically aver such implied contract and defendant’s liability thereon, and must not leave it to inference to be deduced from other facts pleaded, and a petition in such a case, which fails to make a specific allegation of the implied contract and defendant’s liability thereon is bad as against a special exception.” No proposition follows this assignment, nor is tbe assignment adopted as a proposition. Tbe assignment does not complain of any action of tbe court. Rule 30 for Courts of Civil Appeals; Article 1612, Vernon’s Sayles’ Tex. Civ. Stats; Poland v. Porter, 44 Tex. Civ. App. 334, 98 S. W. 216; Pullman v. Hoyle, 52 Tex. Civ. App. 534, 115 S. W. 318, Willis v. Hatfield, 63 Tex. Civ. App. 582, 133 S. W. 929; I. & G. N. Ry. Co. v. Boykin, 85 S. W. 1164; Kilday v. Perkins, 90 S. W. 215. Tbe reference to tbe page of tbe transcript is equally barren, for there we find, in paragraph 2 of tbe motion for new trial, only that: “The court erred in overruling defendant’s special exception No. la, as more fully appears in defendant’s bill of exception No. 2.” [3] Thus again we are sent on tbe quest to find what appellant’s claim of error is. Tbe court should not be required to indulge in tbis “puss wants a comer” game to discover tbe basis of an appellant’s contention of error. But we think tbe assignment should be overruled on its merits, anyway. We think tbe allegations that tbe defendant executed the checks, for a valuable consideration, and delivered them to plaintiff, who is now tbe. bolder and owner thereof, and who presented said cheeks to tbe bank on which they were drawn, by which payment was refused, “and tbe defendant is indebted to tbe plaintiff thereon and by reason thereof,” coupled "with tbe other allegations contained in tbe petition, substantially allege a promise to pay, if not in express terms, at least impliedly. “Indebted,” in tbe dictionary, is defined as “having contracted or incurred a debt.” “Indebtedness, or debt, is whatever one owes, or in a purely technical sense is that for which an action of debt will lie; a sum of money due by certain and express agreement.” W. & P. vol. 2, p. 1026, citing Hornbeck v. Davidson, 33 Ind. App. 609, 71 N. E. 916; 1 Bouvier, Diet. 786. In the respect that tbis petition does contain the allegation of indebtedness by defendant to plaintiff, it is to be distinguished from that shown in Graves v. Drane, 66 Tex. 658, 1 S. W. 905, in which case it was held that tbe petition was good as against a general demurrer but would have been subject to special exception. [4] We do not think any issue which properly ought to have been submitted to the jury was presented by reason of defendant’s claim that the understanding was that defendant would not have to pay or be liable on these checks unless defendant was financially able to meet them and to deposit the money in the bank with which they could be paid. “Parol evidence is not admissible as a rule to affect the terms of a check.” 5 R. O. B. 495. Such a contention, if allowed, would be contradictory of the instruments. The consideration being established without controversy, as here, and there being no claim of fraud, accident, or mistake, it would be violative of the rule that one may not by parol contradict or vary the terms of a written instrument to permit the drawer to show that the check was to be payable only upon conditions not expressed in the instrument. Roundtree v. Gilroy, 57 Tex. 176; Self v. King, 28 Tex. 553; 17 Cyc. 592 ; 3 R. C. L. p. 868. In this case the checks were given for meat purchased by appellant, who was a butcher, and he makes no contention there was any failure of consideration. Franklin v. Smith, 1 Posey, Unrep. Cas. 240; Riley v. Treanor, 25 S. W. 1054; Dwiggins v. Merchants’ Nat. Bank, 27 S. W. 172; Bailey v. Nat. Bank, 61 S. W. 530; Rockmore et al. v. Davenport, 14 Tex. 602, 65 Am. Dec. 132 Nor is there any allegation or proof of fraud, accident, or mistake. [5] Since the evidence shows that the/reason certain of the checks were not presented for payment to the bank upon which they were drawn was because the appellant had phoned appellee’s agent not t> so present them, that the funds to pay them had not yet been deposited in- the bank, appellant is *777 in no position to complain of the appellee’s failure to present them for.payment. Lewis v. Bank, 37 Tex. Civ. App. 241, 83 S. W. 423; 7 C. J. 969; 8 C. J. 685, 962. The judgment of the trial court is affirmed. Affirmed. CONNER, C. J., not sitting. Footnotes [1] jg^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes