
    HUBB DIGGS CO. v. FORT WORTH STATE BANK.
    (No. 957-4772.)
    Commission of Appeals of Texas, Section A.
    Oct. 12, 1927.
    1. Pleading &wkey;403(2) — Supplemental petition, plus affirmatives of answer and cross-action, may aid petition.
    Allegations of the supplemental petition, plus the affirmatives of the answer and cross-action, may aid the petition.
    2. Judgment <&wkey;25l(l) — Where pleadings in action on notes set forth all surrounding circumstances, court should award such relief as proof of averments might warrant. .
    Where action as first pleaded was one on notes with actual or purposed actual indorsement, hut the supplemental petition, plus affirmatives of the answer and cross-action, set forth alleged facts concerning related agreements and all circumstances surrounding execution and sale of notes, it was the court’s duty to award such relief as the proof in harmony with the averments might warrant.
    3. Bills and notes <&wkey;227 — Oral agreement that indorsement of last note of series should be considered indorsement of all held sufficient to base action on, notwithstanding statute (Negotiable Instruments Law, § 18).
    Oral agreement that the indorsement of the last note of a series should be considered as an indorsement of all held sufficient to base an action on, notwithstanding Negotiable Instruments Law, § 18 (Rev. St. 1925, art. 5932), giving immunity to one whose name does not appear on a note.
    4. Frauds, statute of &wkey;>27 — Where bank purchased notes from defendant, oral agreement that indorsement on one should be considered indorsement of all held not within statute (Rev. St. 1925, art. 399*5, § 2).
    Where bank purchased notes from the defendant which defendant had received in payment for an automobile, an oral agreement that the indorsement of the last note of the series should be considered an indorsement of all held not within statute of frauds (Rev. St. 1925, art. 3995, § 2), since it was not an agreement to answer for the debt or default of another; maker not having been indebted to bank.
    5. Bills and notes &wkey;?5!4 — Frauds, statute of <&wkey;!58(2) — In action against seller of notes, testimony of agreement that indorsement of one should be considered indorsement of ail held admissible (Negotiable Instruments Law, § 18; Rev. St. 1925, art. 3995, § 2).
    In action against seller of notes, testimony of agreement between seller .and buyer that seller’s indorsement of the last of the series should be considered an indorsement of all held admissible, since such an oral agreement would be enforceable, notwithstanding Negotiable Instruments Law, § 18 (Rev. St. 1925, art. 5932), giving immunity to one whose name does not appear on note, and statute of frauds (Rev. St. 1925, art. 3995, § 2).
    6. Bills and notes <&wkey;5!4 — In action against seller of notes, where testimony of agreement that indorsement of one should be considered indorsement of all was admitted, seller’s evidence of different agreement held erroneously excluded.
    In action against seller of notes, where testimony of an agreement that buyer was to consider seller’s indorsement of the last of the series as an indorsement of all was admitted, evidence on behalf of seller of agreement that in-dorsement of the last note only, without words indicating that it was for the entire series, should cover only the note indorsed, iheld erroneously excluded.
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Suit by the Fort Worth State Bank against the Hubb Diggs Company and Knapp. Cross-action by the Hubb Diggs Company against Knapp. From a judgment for plaintiff, defendant Hubb Diggs Company appealed. Judgment was reversed, and the cause remanded. Pending rehearing, questions were certified. Questions answered.
    Thompson & Barwise and B. Y. Thompson, all of Fort Worth, for appellant.
    Hyer & Christian, of Fort Worth, for ap-pellee.
   NICKELS, J.

Knapp bought of Hubb Diggs Company a Ford coupg, largely on credit. He executed and delivered to the company 12 notes, of a series, each for the principal sum of $44.14, except the last of the series, and it was for the principal sum of $44.15. The notes, however, were not in form made payable to Hubb Diggs Company; the named payee was Guaranty State Bank. At the same time Knapp executed and delivered to the company a chattel mortgage, naming Guaranty State Bank as mortgagee. The bank, however, had no interest in the transaction and up to this point was a stranger.

The papers were given that form, apparently, because the company expected to sell the debt and security to the bank. The sale was then made to the bank, the transfer being by delivery of the papers with blank indorsement upon the last note of the series. Knapp had nothing to do with this sale.

Subsequently that bank transferred the notes and mortgage to appellee, and ■ it brought the present suit against Knapp and the company upon notes 7 to 12, inclusive; each one of the series having an accelerated payment clause. Hubb Diggs Company, by way of answer, set up a general demurrer and general denial, and especially averred that the notes, except the twelfth, were not indorsed or signed by-it, and, further, that Guaranty State Bank understood at the time of the purchase by it that Knapp resided in El Dorado, Ark., where he had the Ford coupé in use, and that plaintiff, assignee, knowing this, had failed to use proper diligence, in that it failed to call upon Knapp for payment (he would have paid, it is said, if called upon), and in that it did not take possession of the car. In a supplemental petition Fort Worth State Bank alleged, in substance, origin and history of the notes as above given, and that “there was an agreement and understanding between Hubb Diggs Company and the Guaranty State Bank for said bank to take the automobile paper of said * * * company and (for) said defendant to guarantee the payment of any and all such' paper accepted by said bank from said defendant, and that notes would be taken (by the company) in series as to each automobile sold, and, in order to save time and trouble- of indorsing each and every note 'of a series separately, the said defendant should indorse only the last note'of each series, and this would be taken and considered as a full indorsement of each and every note in the series; the last note of the present series being so indorsed with the mutual intent that the in-dorsement was an indorsement of all the notes.” By supplemental answer Hubb Diggs Company offered the defense of section 2 (article 3995, E. S. 1925) of the statute of frauds. The company had, also, a cross-action against Knapp for whatever might be recovered against it.

Verdict was instructed against Knapp and the company. The. company, appealed, and by a divided court the judgment was reversed and the cause remanded. Judge Buck thought that judgment ought to be rendered against the company upon the last note of the series and in its favor in respect to notes 7 to 11, inclusive. The case is now pending upon motion for rehearing in that court.

Orgain, cashier of Guaranty State Bank, for appellee, testified that Guaranty State Bank, at the time, was handling the “automobile paper” of Hubb Diggs Company, and that when the Knapp notes came in it was 'noticed that Knapp’s address was El Dorado, Ark.; thereupon he said, he telephoned Mr. Pentecost, an officer of the company, and told him that the bank could not handle the notes of a nonresident without the indorsement of .the company, and that Mr. Pentecost replied: “Send them down here, and we will indorse them.”' The notes were then sent to the place of business of the company, he said, and when “they were returned only one note was indorsed.” Against objection by the company, he was then allowed to testify to existence of such general agreement as that alleged. Hubb Diggs, for his company, testified that he was familiar with “the manner of handling commercial paper that existed between the company and the Guaranty State Bank about the time the Knapp notes were made and knew the intention of the company in indorsing the Knapp notes, but that Mr. Pentecost handled the matter, and he (Diggs) did not have any independent recollection thereof.” The company then offered his testimony (excluded upon objection) that the “arrangement between the Guaranty State Bank and the company was that the bank would take care of all brokerage and insurance and bear all responsibility, except that in some cases the company indorsed the paper on the back and sometimes indorsed the notes as a series by placing its indorsement on the last note and using words to indicate that such in-dorsement was for the entire series, and whenever the company indorsed the last note without such explanatory words such in-dorsement was intended to cover only the last note.”

In questions Nos. 1 and 2, respectively, the Court of Civil Appeals has inquired whether there was error in excluding the testimony of Diggs and in admitting that portion of Orgain’s testimony to which objection was : made.

While the case as first pleaded was one upon the notes with their actual or purposed actual indorsements, the supplemental petition, plus the affirmatives of the answer and cross-action, which, of course, may aid the petition (Pope v. K. C., M. & O. Ry. Co., 109 Tex. 311, 322, 207 S. W. 514), set up the facts of the entire matter and those allegations, with the prayer for general relief, etc., made it the duty of the court to award such relief as the proof, in harmony with the averments, might warrant (G., C. & S. F. Ry. Co. v. Levy, 59 Tex. 542, 46 Am. Rep. 269).

Pretermitting the question whether, as a matter of law, indorsement of £he last note of the series made an indorsement of all of them, it may be said a right of action lay upon the oral agreement alleged and sought to be proved by Orgain’s testimony of a kind not precluded by section 18 of the Negotiable Instruments Law (Rev. St. 1925, art. 5932) giving immunity to one whose name does not appear on the paper. First State Bank of Windom v. McElwrath (Tex. Civ. App.) 266 S. W. 837; Swenson v. Stoltz, 36 Wash. 318, 78 P. 999, 2 Ann. Cas. 504. Hence the testimony was admissible despite the defense grounded in section 18. If it was improper at all, it was so because thereby a right of action, not evidenced on paper, would or might be proved in defiance of the statute of frauds.

As a matter of course, the debt purportedly evidenced by the notes drawn in favor of Guaranty State Bank was the property of Hubb Diggs Company. That bank had nothing to do with the transaction between Knapp and the company. He merely bought a car from the company and agreed to pay for it, and he was the company’s debtor up to the time of the sale of the notes. The company then sold the debt to the bank in consideration of money then paid to it by the bank, and, if the version pleaded by appellee and supported by Orgain’s testimony be true, made an agreement for conditional liability, in all substantial respects as if a car (with a certain warranty), rather than a debt,, had been sold. This did not involve that answering for the debt or default of another regulated in the statute, but it included such a new and independent promise, upon ample consideration beneficial to the promisor, to do a certain thing upon happening of a contingency as lay without the statutory inhibition. Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291; Lemmon v. Box, 20 Tex. 329; Wallace v. Freeman, 25 Tex. Supp. 91; First State Bank of Windom v. McElwrath, supra; Emerson v. Slater, 22 How. 28, 43, 16 L. Ed. 360; 2 Daniel on Negotiable Instruments (5th Ed.) § 1763; 3 R. C. L. 1160; Tiedeman on Commercial Paper, § 418; 2 Elliott on Contracts, § 1235.

Since, therefore, the promise is without the statute and the suit is cognizable as one in whole or in part upon the oral agreement, all question about the admissibility of Or-gain’s testimony disappears.

Competency of that testimony - made proper the testimony of Diggs. The purpose of Orgain’s testimony was to develop the general agreement or arrangement so as to give point to the brief conversation between Orgain and Pentecost at the. time and the evidence of intent in sending the notes back to the company and in the company’s actual indorsement of one of them. If, as held, the bank had a right to show its version of the general arrangement in important aid of its claim, its opponent assuredly had a right to show a different arrangement, and to contest the bank’s claim and contradict the witness by whom it sought to prove the claim.

The third question propounded by the Court of Civil Appeals is whether “it erred in reversing the judgment of the trial court, and, if it did not so err, whether judgment should then have been rendered for the bank in the principal sum of the last note only, with interest and costs.” What has been said shows our view that the judgment ought to have been reversed and the cause remanded, as was done.

A fourth question is: “Did the indorsement of the last note, under the circumstances stated, constitute as a matter of law the indorsement of the whole series?” Disposition of the other questions, upon the grounds stated, renders immaterial the fourth question.

Accordingly, we recommend that the .three material questions be thus answered: No. 1, “Yes”; No. 2, “No”; No. 3, “The Court of Civil Appeals did not err in reversing the judgment of the trial court and-in remanding the cause for further trial.”

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions is adopted, and we direct particular attention to the ease of First State Bank of Windom v. McElwrath (Tex. Civ. App.) 266 S. W. 838, cited by the commission. 
      &wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     