
    WAHL v. RAMSEY et al.
    (No. 1040.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 22, 1920.
    Rehearing Denied Feb. 19, 1920.)
    1. Parties <&wkey;56 — Plaintiff permitted to AMEND TO ASSERT DIFFERENT CAUSES OF ACTION AGAINST PARTIES INTERPLEADED BY ORIGINAL DEFENDANTS.
    Where plaintiff sued a liquor company for the price of a saloon business and it inter-pleaded W. and wife on a note given for the price of such business and disclaimed any interest in the note or amount due, plaintiff was properly permitted, after citing W. and wife, .to amend and assert a cause of action against them on the note.
    2. Bills and notes <&wkey;443(l) — Action on NOTE MAINTAINABLE BY EQUITABLE OWNER NOT NAMED AS PAYEE.
    Where plaintiff sold a saloon business to ■defendants and had the note for the price made payable to a liquor company, to which he expected to sell the note, he was the equitable owner, and could sue on the note in his own name.
    5. Election of remedies <&wkey;ll — No election OF REMEDIES BY SELLER FIRST SUING FOR PRICE OF BUSINESS INSTEAD OF ON NOTE.
    , Where plaintiff sold a saloon business to ■defendants and had the note for the price made payable to a liquor company to which he expected to sell it, there was no election of remedies, preventing suit on the note, by first suing the liquor company for the price of the ■business sold, but merely a mistake of remedy.
    •4. Bills and notes &wkey;>489(7) — Variance between PETITION AND NOTE FATAL.
    There was a fatal variance between a note reciting that it was given in - payment of a liquor business purchased from a third party •and a petition alleging that it was given in consideration of a business sold by plaintiff to defendant, and not showing that the note was negotiable, or that it was secured by a chattel mortgage or payable at a bank.
    ■5. Appeal and error <&wkey;930(3) — -No presumption IN FAVOR OF VERDICT AS TO ISSUE ON WHICH THERE WAS NO EVIDENCE.
    There was no presumption on appeal in favor of the verdict under Vernon’s Sayle’s’ Ann. ■Oiv. St. 1914, art. 1985, as to the issue, not submitted to the jury, of the discharge of a .surety by dissipation of the chattel mortgage security, where there was no affirmative evidence to establish what became of the property.
    Higgins, J., dissenting.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by L. O. Ramsey against the Gold-oft Liquor Company, which interpleaded George W. Wahl and another. From the judgment, defendant Mrs. George W. Wahl appeals.
    Reversed and remanded.
    i M. W. Stanton and M. V. Ward, both of El Paso,, for appellant.
    Chas. Owen, Jno. E. Weeks, and McKenzie & Loose, all of El Paso, for appellee.
   Statement of the Case.

HARPER, C. J.

On March 13, 1915, L. O. Ramsey filed his original petition in this suit against the Goldoft Liquor Company, a corporation, in which he alleged his cause of action, to be suit for $1,250, agreed price of a certain saloon business, goods in stock, etc., sold by plaintiff to defendant. The Goldoft Liquor Company answered to the merits, and set up the note which is the basis of the judgment appealed from, and interpleaded appellant, Mrs. Geo. W. Wahl, and Geo. W. Wahl,- the makers, prayed judgment over against them in case plaintiff should recover against the company. Defendants answered the latter, pleading by general and special exceptions and general denial.. Plaintiff then filed first, second, and third amended petitions, but defendants were not made parties to the original cause of action by any of these pleadings. June 18, 1918, by amicus curiae, filed notice was given that no service had been had upon the Wahls. Whereupon plaintiff filed his fourth amended original petition August 8, 1918, making the Wahls parties and also Terrell, trustee for Goldoft Liquor Company, which had in the meantime become a bankrupt, and citation issued accordingly, shown to be served August 16, 1918. Thereafter, on March 31, 1919, the fifth amended original petition was filed upon which the case went to trial. By this petition plaintiff declared that the liquor business and goods, etc., described in the first pleadings, were, about May 28, 1914, sold to G. W. Wahl for $1,-250, and that the latter—

“joined by his mother, Mrs. G. W. Wahl, made, executed, and delivered to the plaintiff for and in consideration of the purchase price of said stock of liquor their certain promissory note for the sum of $1,250, due six months after date, but inasmuch as plaintiff intended to sell said note to Goldoft Liquor Company, the note for convenience was made payable to the Goldoft Liquor Company, but the plaintiff represents that the sale of said note to Goldoft Liquor Company was never consummated, and that said company was holding said note as trustee for plaintiff, who is the owner of same, both legal and equitable; that the note draws-interest at the rate of 10 per cent, per annunl, and provides for 10 per cent, attorney’s fees in case suit is brought on it.”

In further description it is further alleged:

“The Goldoft Liquor Company, acting through its agent and duly authorized representative, transferred said note without recourse to L. O. Ramsey, and that said transfer was placed upon the back of said note in substantially the following language, ‘Pay to L. O. Ramsey without recourse on ns,’ signed Goldoft Liquor Co., by -, its general manager.”

Then follows the allegation that it had been lost. Terrell, as trustee, disclaimed any interest in the note. George W. Wahl answered by general and special exceptions, general denial, specially denied that the note was ever transferred or assigned or delivered to plaintiff. That the alleged agreement, whereby defendants became liable to plaintiff instead of the payee in the note, is barred by the statute of two-year limitation. No consideration, in that the plaintiff took possession of the license and other property and sold same to one Duran, for which there is accord and satisfaction. Mrs. G. W. Wahl adopted the pleadings of her codefendant. That there was executed a chattel mortgage to said Goldoft Liquor Company upon the property described to secure the payment of the said note. That it was primary and first security for its payment. That plaintiff appropriated said property to his own use. Wherefore she, being simply a surety on the note, is thereby discharged.' The cause was submitted upon special issues, and upon the verdict judgment was entered for the amount of the note, interest, and attorney’s fees, from which Mrs.-G. W. Wahl appeals.

’ Opinion.

It is urged that it was error to permit plaintiff by fifth amended petition' to change tie nature of his suit as to parties and cause óf action. Since the Goldoft Liquor Company and the trustee in effect disclaimed any interest in the note or amount due, and the appellants having been made parties for the limited purpose of a recovery over .against them by the liquor company in case judgment was recovered against it, whilst irregular, we can see no reason why by amendment the cause of action should not be asserted against them after citation. Jolley v. Oliver, 106 S. W. 1151.

The plea of two-year limitation does not apply to the now cause of action being bottomed upon the note. The agreement to make the note payable to the Goldoft Liquor Company had the effect to make it the legal owner and holder of the note, but if Ramsey was in fact the equitable owner he could sue "in his own name. Guest v. Rhine, 16 Tex. 549.

There was no election of remedies by first bringing his suit against the liquor company for the amount of the price of the business sold, instead of upon the note; it was simply a mistake of remedy. The record does not show that plaintiff had two valid and available and inconsistent remedies, and undertook to pursue one. Therefore there is no election. Ins. Co. v. Eggleston, 195 S. W. 942.

The next is, Is there such a variance between the note described in the pleadings 'and the one introduced as to be fatal to a recovery? The note declared upon, described in the original statement of the pleadings above, is a demand note, etc. The note introduced in evidence to support the plea is a negotiable promissory note for $1,250, payable to the order of Goldoft Liquor Company, with the recital:

“This note is further secured by a chattel mortgage on the property this day acquired from the Goldoft Liquor Company.” “This note payable at the Commercial National Bank of El Paso, Texas.”

The indorsement upon the note introduced: is:

“Pay to the order of L. O. Ramsey without recourse on us. [Signed] Goldoft Liquor Co., Inc.”

The pleading is that the note was given in consideration of a liquor business sold by him to the defendant Geo. W. Wahl. The note recites that it was given in payment of a liquor business that day purchased from the Goldoft Liquor Company. The variance is fatal to the judgment. Sweetzer, Pembroke & Co. v. Claflin, 74 Tex. 667, 12 S. W. 395.

It is further urged that, Mrs. G. W. Wahl, appellant, being a surety on the note, and the jury having so found, and she having pleaded that a chattel mortgage was executed to secure its payment upon the property sold, for- which the note was executed as sole consideration, and it further-appearing from the uncontradietory evidence that this security was dissipated with knowledge of plaintiff, and no diligence shown by plaintiff in applying the security to the debt, that the appellant is discharged. This issue was not submitted to the jury, but there is no affirmative evidence to establish what be came of this .property, so the court could not find this issue in favor of the judgment therefore there can be no presumption in favor of the verdict upon appeal under Rev. Stat. (Vernon’s Sayles) art. 1985. Kempner v. Patrick, 43 Tex. Civ. App. 216, 95 S. W. 51.

There are other questions proposed by appellant not in proper form of assignments of-error, which strongly urge, in our minds, a reversal of the case. For instance, the pleadings in this case strongly indicate that plaintiff was never either the legal or equitable-owner and holder of this note, and the testimony of plaintiff strongly indicates that he never in fact was in a position to demand or collect the amount of this note from appellant, Mrs. G. W. Wahl. The cause is therefore reversed and remanded for new trial.

HIGGINS, J.

(dissenting). From the rulings of the majority upon which the reversal is based I dissent for the following reasons:

First If there is any variance between the notes sued upon and the one offered in evidence, it is a matter of misdescription only, and was not such as tended to mislead or surprise the appellants, and was properly disregarded by the court. Washington v. Bank, 64 Tex. 4; McClelland v. Smith, 3 Tex. 210; Hays & Co. v. Samuels & Sons, 55 Tex. 560; Taylor v. Merrill, 64 Tex. 494; and other cases cited in 13 Encyclopedic Digest, 1168, 1169.

Second. It appears from the undisputed evidence of the plaintiff Ramsey that he knew nothing about the chattel mortgage having been executed to secure the payment of this note until the trial of the case. Furthermore, if the property mortgaged was dissipated, there is nothing to show that he was responsible therefor. If it was dissipated and lost it was done by the mortgagor, G. W. Wahl, the principal obligor in the note sued upon. Furthermore, the chattel mortgage mentioned covered the following:

“All stock of whisky, both barrel and bottle goods; all beer and glassware; one liquor dealers license; 'one National cash register; twelve chairs; three tables; all located in building on east side, Main street, Ysleta, Tex.”

The stock of whisky mortgaged represented the stock in trade of a retail liquor dealer, which was to be sold in the ordinary course of business, and was void as to that item. As to the liquor dealer’s license, the lapse of time rendered it of no value.

It does not seem to the writer that the appellee in this case, upon the record presented, can be defeated of his right to recover against the surety, Mrs. Wahl, upon the theory that he has been a party to a dissipation of the mortgaged property, nor upon the theory that he has not been diligent in applying the security of the mortgage to the payment of his debt.

The writer is of the opinion that no reversible error is presented, and that the judgment should be affirmed, and here now enters of record the grounds of his dissent from the rulings of the majority, as by'law required. 
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