Appellant brought this suit against appellees J. H. Bell and G. B. Bell, seeking to recover upon a number of notes found among the assets of the City National Bank of Bowie, which assets had been taken over by appellant by a general assignment when the City National Bank of Bowie went out of business and appellant bank took over its assets. No indorsement was made by the City National Bank.
Defendant J. H. Bell set up various defenses to the several notes, unnecessary to mention here, as this appeal is predicated upon the judgment of the court as to only one of said notes, to wit, a note for $5,000 executed July 16, 1930, payable to the City National Bank, signed by "J. H. Bell" on its face and "G. B. Bell, surety" on its back, secured by an assignment of six vendor's lien notes of G. B. Bell to J. H. Bell, as collateral security.
Trial was had to a jury, and by their verdict all of the defenses submitted were sustained, upon evidence regarded by the court and admitted by the appellant to be sufficient to support their verdict. The judgment of the court discharges appellant J. H. Bell with his costs, but is for the bank as against G. B. Bell for the sum of $13,084.50, with interest at 10 per cent. No statement of facts is filed in this case.
Six assignments of error are presented for our consideration. The first, fifth, and sixth complain of the action of the trial court in overruling certain special exceptions of the plaintiff to portions of the answer of the defendants. The majority are inclined to the opinion that these *Page 120 exceptions are well taken, but in view of another trial and probable amended pleadings, we do not pass on such assignments of error.
Assignments two, three, and four present the controlling question, and we consider them together. This group of assignments present the question of whether the court was justified, upon the verdict of the jury, in discharging both defendants from liability on this $5,000 note and canceling the six vendor's lien notes which were assigned by J. H. Bell as collateral security for the same.
J. H. Bell pleaded that the debt was one of G. B. Bell, and that Hutchinson, the president of the City National Bank of Bowie, agreed with him to get the signature of G. B. Bell upon the same as principal, while he, J. H. Bell, was to be only secondarily liable as surety. This answer was sworn to by J. H. Bell, and G. B. Bell, in his sworn answer, adopted the pleading of J. H. Bell.
It will thus be seen that no question was raised as to G. B. Bell owing the bank the $5,000, represented by said note, which he signed on the back thereof, "G. B. Bell, surety." It was signed on its face, "J. H. Bell," appearing at the foot of said note where the maker usually signs.
The jury found "upon sufficient evidence," states the trial court, that Hutchinson so promised J. H. Bell, and the court thereupon rendered judgment in effect that plaintiff take nothing in his suit upon said note. As the matter appears in the transcript, the writer is of the opinion that the trial court could do nothing else, the note being void as to both principal and surety because of the failure of the condition of delivery.
As was said by Justice Levy in the case of Beard v. Austin, State Banking Com'r (Tex. Civ. App.) 297 S.W. 786, 787: "As the present note was never delivered nor intended by the parties to be delivered unconditionally for the purpose of giving effect thereto, it was not valid or effectual between the immediate parties for any purpose, without compliance with the condition. The appellee's remedy was to sue on the prior note or the debt itself."
But upon the principle that "no man should be permitted to reap an advantage from his own wrong," the majority are of the opinion that these assignments should be sustained and the case reversed and remanded, so that the parties upon proper pleadings might reach some judgment that would appear more just and equitable.
As to the six vendor's lien notes, assigned as collateral security for the payment of the $5,000 note by J. H. Bell, the jury found that the plaintiff below, at the time the City National Bank of Bowie assigned to it these securities, had no knowledge of any equitable defenses to the same, and we all agree that as the cause is to be reversed, at all events, the issues presented as to these collateral notes should be retried.
We are seriously handicapped in the consideration of this case by the total absence of a statement of facts. It is made quite certain by the pleadings that one or both of the Bells owed the debt to the plaintiff bank, if not in the form presented, then in some other form and manner. The writer is of the opinion that the judgment of the trial court should be affirmed without prejudice to the right of appellant to sue on the debt and the collateral security, while my brethren think it should be affirmed as to all other issues, but reversed and remanded as to the $5,000 note and the six vendor's lien notes pledged as collateral therefor. After all, it will be noted that we are not far apart, at least not far enough for the writer to prepare and file a dissenting opinion.
The judgment of the trial court is affirmed in part and reversed and remanded in part.
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