Connor v. Uvalde Nat. Bank

MOURSUND, J. The Uvalde National Bank sued F. E. Seawell, M. Connor, and J. J. H. Patterson upon a promissory note for $815, alleging that the note was a joint and several obligation, and that Connor’s name was signed thereto by Seawell, who was duly authorized to sign said Connor’s name thereto. Connor filed a plea of non est factum, a general demurrer, and general denial. Patterson admitted the execution of the note and prayed for judgment over against Seawell for any amount he might have to pay, and also for contribution over against Connor. Connor also filed a plea for judgment against Patterson for half of any amount that Connor might have to pay in the event it was decided that he was a surety upon the note. Upon the trial, the court instructed a verdict in favor of plaintiff against all the defendants for the full amount of the note, with interest and attorney’s fees, and for defendants Connor and Patterson over against Seawell, and for each of said two defendants against the other for judgments of contribution. Upon the return of the verdict according to the in [1093] struction given by the court, judgment was entered accordingly, 'from which Connor appealed. Summary of Evidence. Defendant Seawell testified as follows: “My name is P. E. Seawell. I am one of the defendants in this case. I reside in San Antonio, Tes. I resided in Uvalde before moving to San Antonio. I am acquainted with the defendant M. Connor. Have known him several years. I have seen the note sued upon in this case before [the note then being exhibited to him]. I signed my name and the name of M. Connor to this note. I had authority from Mr. Connor to sign his name to it. He gave me authority to sign his name to it.” On cross-examination he testified: “Mr. Connor was on another note of mine at the Uvalde National Bank and this note became due and I went out to Mr. Con-nor’s farm and asked him if he would renew the note with me and he said he would. This was some time during the latter part of April or during the month of May, 1911. Mr. Connor was at that time down in his hayfield making hay. The amount of the note was never mentioned nor discussed, as it was a renewal note. Nothing was ever said about the principal, interest, nor attorney’s fees of the note; that was never discussed nor mentioned. I came on back to town and went to the bank and had the note made out, and then signed my name to it and signed Mr. Connor’s name to it. Mr. Connor never saw the note before it was executed. I did not take it with me out to Mr. Connor’s farm when I went. The note was not made out until after I came back to town. I was the principal in the old note and am also the principal in the new note. I owe the debt. Mr. Connor did not get anything on the note. I got the money from the bank. Mr. Connor was only surety on the old note, and I just asked him if he would be surety on the new note, and he said he would. I was only to sign his name to the note as surety. I was to be principal in the new note and he was to be a surety. I only had authority from Mr. Connor to sign his name as surety to the note. I did not have authority from him to sign his name as principal to the new note. I am positive of this. There was no one present at the time I talked to Mr. Connor down in the hayfield, except Mr. Connor and myself. No one heard the conversation, except Mr. Connor and I. I am sure it was some time in April or May, 1911, when I went out to Mr. Connor’s farm. He was working in the hayfield. I am sure about that The note was dated back to March 15, 1911, so it would take effect on the date the old note became due. The interest of the old note was not paid; it was added into the face of the new note. I did not pay the interest on either the old or the new note.” The promissory note sued upon was, for $815, dated March 15, 1911, due, 90 days after date, bearing 10'per cent, interest from maturity, and providing for 10 per cent, attorney’s fees if placed in the hands of attorneys for collection after maturity. It was payable to plaintiff’s order, was a joint .and several note, with the names F. E. Sea-well, J. J. H. Patterson, and M. Connor, per Seawell, signed thereto. The note was placed in the hands of attorneys for collection after maturity upon an agreement to pay' them the 10 per cent, attorney’s fees provided for in the note as their fee for collecting the note. Defendant Connor testified on direct examination as follows: “My name is M. Con-nor. I am one of the defendants in this cause. I live about 11 miles east of Uvalde. I am a farmer and stock raiser. I know F. E. Seawell. I have known him several years. I was surety on a note for Mr. Sea-well at the bank, and he came out to my place some time in the summer, of 1911 and asked me if I was willing to go on the note again. I asked him if he had kept the interest paid up and he said he had. I told him that I would go on the note again. I was making hay at the time. He did not have the note with him.” The note sued upon was then handed to the witness and he said: “I never saw this noté until after it was sued upon. I did not authorize Mr. Seawell to sign my name to this note. I authorized him to sign my name to a note, but not this note. I authorized him to sign my name to a $200 note.” On cross-examination he said: “Yes, it is a fact that I gave Mr. Seawell authority to sign my name to a note,' and when he came down there in the field there was nothing said about the amount, terms, interest, or condition; just authorized him to sign my name to a note, and that was all there was to it.” Conclusions of Law. [1-3] By plea of non est factum Connor denied that he executed tlje note described in the petition, and also denied that it was executed by any person authorized- by- him to sign or execute the same for him. Thereupon the burden rested upon plaintiff of showing the authority of Seawell to sign Connor’s name to the particular note sued upon, as well as the fact that he did actually sign such- name thereto. Brashear v. Martin, 25 Tex. 202; Neil v. Schackelford, 45 Tex. 131; City of Tyler v. Adams; 62 S. W. 119; Clymer v. Terry, 50 Tex. Civ. App. 300, 109 S. W. 1130. As was said by. Judge Neill in the case of Baker v. Machinery Co., 84 S. W. 662: “Persons dealing with an assumed agent, whether the assumed agent be-a general or a special one, are bound, at their peril, to ascertain not only the fact of the agency, but the extent of his authority; and, in case either is controverted, the burden of proof is upon them to establish it.” See, also, Mechem on Agency, §§ 706, 707; [1094] Buzard v. Jolly (Sup.) 6 S. W. 422; Sackville v. Storey, 149 S. W. 241; Machinery Co. v. Peter & Sherrill, 84 Tex. 627, 19 S. W. 860. In this case it was the duty of plaintiff to ascertain, at its peril, whether Seawell had authority to sign Connor’s name to the note it accepted, and, when it sued upon such note and the authority of Seawell to execute the note for Connor was denied under oath, the burden rested upon plaintiff of showing such authority, and it could not meet such burden by proof of authority to execute a note different from the one sued upon. [4, 5] Authority to sign a person’s name to a note as surety does not confer authority to sign his name to a joint and several note as principal, nor does authority to execute á note for a certain amount confer authority to execute one for a larger amount. Cyc. vol. 31, pp. 1342, 1385, 1386. ‘ Applying these principles to the evidence introduced in this case, we find such evidence insufficient to justify the court in instructing a verdict for plaintiff. Seawell testified positively that his only .-authority was to sign Connor’s name as a surety and not as a' principal obligor. Connor, upon cross-examination, went a long way toward justifying the instruction of the court against him, but it cannot be said that he even contradicted Seawell’s statement as to the capacity in which his name should appear upon the note. [6] It is also contended that plaintiff failed to make a case because the note was antedated. It appears that, while both parties refer to the fact that the note to be given by Seawell was to be a renewal note, the note to be renewed was not introduced' in evidence, nor any portion of the description of same testified to other than the date when it became due. The note sued upon was dated as of the date of the maturity of the other note. Connor was a party to the other note and chargeable with knowledge of the time when it matured. Under these circumstances, in the absence of evidence showing-a-contrary intent, we think authority to sign a note in renewal of the former note would carry with - it authority to antedate the note so', it would bear the date when the other note became due. In' some cases antedating an instrument plainly constitutes a violation of the obvious intent of the principal and exceeds the authority conferred, but the facts of this case, as shown by the evidence introduced, do not make out such a case. Appellees cite the following cases in support of the action of the trial court, viz.: Jones v. Primm, 6 Tex. 170; Whittle v. Bank, 7 Tex. Civ. App. 616, 26 S. W. 1011; Riley v. Reifert, 32 S. W. 185; Garner v. McGowen, 27 Tex. 490; Harfst v. Bank, 56 Tex. Civ. App. 31, 119 S. W. 694; Garlitz v. Bank, 152 S. W. 1151. In each of these cases the maker’s name was signed by him or by his authority, and the questions arose upon unauthorized filling in of blanks or fraud used in procuring him to sign the instrument. There, was some act in each ease on the part of the maker upon which persons dealing with reference to the instrument could rely for their protection in taking the instrument for what it purported to be. It becomes our duty to reverse this case because the court was not authorized to instruct a verdict for plaintiff upon the evidence introduced. As it is apparent that the case has not been fully developed, it will be remanded for another trial. Reversed and remanded.