In an action on a note, with an allegation of an agreement that the collateral should be divided between the note and another, evidence that a defendant, at the time the agreement was [Ed. Note.-For other cases, see Evidence, made, objected to switching any of the collateral Cent. Dig. §§ 2005-2020; Dec. Dig. 434.1 to protect the other note, was admissible. [Ed. Note.-For other cases, see Bills and 3. PRINCIPAL AND SURETY 156-ACTION-Notes, Cent. Dig. §§ 1760-1770; Dec. Dig. ANSWER-ISSUES.

In an action on a note, where it appeared that defendants had given three separate notes for the debt in question, one dated April 25, [Ed. Note.-For other cases, see Appeal and Er- 1912, renewed by note dated November 1, 1912, ror, Cent.Dig. §§ 4128-4131, 4134; Dec.Dig. and again renewed by the note in suit dated 1046; Trial, Cent.Dig. §§ 44-75; Dec.Dig. 25.] April 1, 1913, and the court on appeal could not

determine upon the record upon which note the, the defendants signed the note sued upon general verdict was based, it could not determine solely as sureties for an indebtedness due by whether or not the failure to give charges intend- Lankford Furniture Company; that at the ed to instruct with reference to the rights of time of the execution of the note in question, plaintiff under each of the notes was error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2928-2930; Dec. Dig. 699.]

In the absence of any information enabling it to determine error in the refusal to give charges, the presumption must be in support of the judgment.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. 928.]

15. TRIAL

EVIDENCE.

194-INSTRUCTION-WEIGHT OF

in suit, the president of plaintiff bank claimed to have collateral security, consisting of certain furniture notes due the Lankford FurPRESUMP-niture Company, amounting to about $1,700; that other such notes, worth about $800, were in process of collection at Panhandle and other neighboring towns, and that something more than $280 of said $800 in notes had been collected; and that the bank would at once look up the exact amount and credit same on the back of the note in suit; that the remainder of the $800 worth of collateral would remain as security to the note sued upon. It was further alleged that plaintiff bank, without defendants' consent, thereafter took away half, or about half, of the collateral notes, and applied them to the payment of another note due plaintiff bank, upon which defendants were liable; that plaintiff had been negligent in failing to collect the collaterals, by reason of which defendants had sustained a loss; that Frank Morris, Jr., took a number of the collateral notes for collection, some of which he collected, turning

In an action on a note, where there was a dispute as to whether or not other collateral had been substituted for the stock of defendant's company, the refusal of a requested charge that the jury could not consider the capital stock of the company which had been put up as collateral, because part of it had been sold before the execution of the renewal note with knowledge of the defendants that the proceeds had not been applied, but that other collateral was substituted, was proper, as being upon the weight of the evidence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. 194.]

16. BILLS AND NOTES 430, 537-RENEWAL NOTES-EFFECT.

If either of two renewal notes constituted a novation, the note for which the renewals were given was no longer a binding obligation, and this was a question for the jury.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1251-1256, 1862-1893; Dec. Dig. 430, 537.]

Appeal from District Court, Potter County; Jas. N. Browning, Judge.

the proceeds over to the bank, amounting to $264.65; which should be credited on the note sued on, together with about $126.50 worth of furniture, which was sold by the bank and the proceeds of which should be applied as a credit. Defendants also claimed a further credit of $280, being the amount which plaintiff admitted was in its possession at the time of the execution of the note in suit; that, if plaintiff did not have in its possession said $800 worth of collateral notes, it perpetrated a fraud on defendants in making such representations; that, at the time the note in suit was executed, defendants signed it upon

Action by the First State Bank of Amarillo, Tex., against W. P. Cooper and others. Judgment for defendants, and plaintiff appeals. Reversed, and cause remanded. condition that the Lankford Furniture ComTurner & Rollins, of Amarillo, for appel-pany and H. C. Lankford individually would lant. Jones & Miller, of Amarillo, for appellees.

HALL, J. The original petition filed by appellant bank was to recover the amount due on a promissory note of $2,500, dated April 1, 1913, bearing interest at 10 per cent. from date and providing for 10 per cent. attorney's fees, signed by W. P. Cooper, R. R. Wheatley, and Frank Morris, Jr. The note contained the usual provision waiving presentment for payment, notice of nonpayment, protest, etc. The following credits were admitted in the petition: $587.50, paid August 26, 1913; a number of small credits from $1 up to $10, aggregating $116.33, being dated from June 6, 1913, at various times, to November 8, 1913. Defendants' original answer alleged in substance that the note sued upon was given in lieu of a prior note for the same amount, and that collateral to the value of $2,500 had been put up with said previous note to protect the signers of the note in suit, and that

also sign it, and that this was never done, thereby releasing them.

Plaintiff filed several supplemental petitions, alleging, among other things, that the defendants were stockholders and directors in the Lankford Furniture Company, a corporation, which had become bankrupt prior to the execution and delivery of said note; that the indebtedness evidenced by the note had existed in varying amounts for several years, and that there was therefore no necessity for any new consideration in order to render defendants liable thereon; that the benefit received by them was the extension of time on the indebtedness already due. It is further alleged that, at the time the note described in the original petition was executed and delivered, plaintiff had certain collateral notes, which were attached to another note made by said Lankford Furniture Company, in the principal sum of $1,175; that, at the request of defendants, plaintiff's president agreed with them that in the fu

ture in would divide said collaterals in half the back of the note. Appellant insists that whenever money should be collected thereon, the effect of this allegation is to vary the crediting one half on the last-named notes and the other half on the note in suit; that this was done, and the credits made simply as a favor to defendants without any consideration or legal duty resting upon plaintiff to do so; that all sums of money paid by defendants through Frank Morris, Jr., to plaintiff, have been credited in accordance with said agreement, with the full knowledge and consent of all defendants.

terms of the written note signed by defendants by oral evidence, and that the effect of the evidence was to prove an amount really different from that stated in the face of the obligation. Fraud in the execution of the note described in the original answer was not alleged therein; but in the first supplemental answer (which repeats many of the facts set up in the original answer, and by reference to the original answer urges the defenses there set up to the note originally sued upon also in defense of the note dated November 1, 1912), it is alleged that the statements made by plaintiff's president, to the effect that the amount collected upon the collateral would be looked up and credited on the renewal note, were fraudulently made. The error of the court, if any, in overruling this exception, is harmless. The issue of fraud being squarely presented by subsequent pleadings, and the case having been tried with reference to the issues contained in such supplemental pleadings, no injury has resulted by the court's ruling. In Ablowich v. Bank, 22 Tex. Civ. App. 272, 54 S. W. 794, it is said:

"No fraud, accident, or mistake in execution was alleged and we must indulge the legal presumption that all prior agreements, so far as assented to, had been merged in the written in

exact terms upon which the minds of both parevidenced an absolute promise to pay $450 withties thereto met. The instrument sued upon in a specified time, without condition, and we do not think it was competent to show by parol that the agreement in effect contained a condition upon which a less sum was to be paid."

By first supplemental answer, defendants, among other things, alleged that the note in suit was given in lieu of a note dated November 1, 1912, executed by the Lankford Furniture Company, H. C. Lankford, Frank Morris, Jr., R. R. Wheatley, and W. P. Cooper, in the sum of $2,500, due and payable April 1, 1913; that it was executed in such manner as entitles the defendants to all of the defenses urged to the note originally sued upon and that they set up all of said defenses to said note of April 1, 1913, and further pleaded that said note was delivered with collateral notes worth $2,500, which last-named notes were secured by contracts and written liens on furniture sold by the Lankford Furniture Company; that large sums were collected on said collateral notes and the proceeds not applied to either of said notes; that the col-struments executed, and that they contained the laterals were changed several times by plaintiff or its agents, substituting for the original collateral others of a later date; that the note sued upon and set out in the original petition was procured through fraud and fraudulent representations on the part of the plaintiff, to the effect that the signature of the Lankford Furniture Company and H. C. Lankford would be secured thereto, and that the bank would immediately ascertain the amount collected upon collaterals and credit thereon, and that all collateral notes would remain with the note last executed, and but for such fraudulent representations the note first sued upon would not have been executed. In its last supplemental petition, plaintiff prayed in the alternative that, if it should be held that it was not entitled to recover upon the note described in the original petition, then that it be allowed to recover upon the note for which it was substituted, dated November 1, 1912. There was a trial before a jury, resulting in a general verdict for the plaintiff in the sum of $100.98, and from a judgment entered accordingly this appeal is prosecuted. There is nothing in the record to indicate upon which note the jury based the verdict.

We must imply from the language quoted that, in accordance with the general rule, if fraud, accident, or mistake had been alleged, parol evidence of the agreement would have This assignment is overbeen admissible.

ruled.

In effect the same contention is made under the fourth and seventh assignments. It seems clear to us that, if the appellees signed the last note for an amount greater than was actually due, but upon the assurance that the proper credits would be made thereon, thereby reducing it to the correct amount, and their pleadings alleged fraud on the part of the bank president in making such promise, it is a matter of inducement which they are entitled to prove. These assignments present as error the action of the court in not sustaining a specific exception to one paragraph in the original answer, setting up the execution of the note and the statement by the president that the proper [1, 2] The first assignment is based upon credit would be made, but in which no althe action of the court in overruling plain- legation of fraud is found. Technically, tiff's special exception to all that part of the this paragraph of the answer was insuffianswer alleging that the president of bank cient; but if fraud is set up elsewhere in told defendants that $800 worth of collateral the answer, or by supplemental pleadings, was in process of collection and that some- as appears to be the case here, we think no thing more than $280 of said amount had harm has been done by the ruling of the been collected, and that the exact amount court in this instance. The fourth and sev

[3] The fifth paragraph of defendant's answer is as follows:

"Defendants allege that at the time of the execution of the note sued upon the plaintiff bank had as collateral for the same $1,700 worth of the same paper that was placed up with said previous note, and defendants asked the plaintiff, through its president, what had become of the remaining portion of said collateral security, to wit, the $800 worth of collateral notes, whereupon the said president, who was the duly authorized agent and representative of the plaintiff bank, told the defendants and informed them that said $800 worth of collateral was in process of collection, some of it being at Panhandle and at other places, and that something more than $280 of said $800 worth of collateral notes had been collected, and that the bank would at once look up the exact amount that had been collected and credit the same on the back of said notes as the various items were shown on the bank book, but that it would take some little time to figure up the exact amount, and that the remaining portion of the $800 worth of collateral would remain as security for said note sued upon, making the entire amount equal to the notes; that said collateral notes were of the value of $2,500, and said $1.700 worth of notes were in the bank at said time, and were to be as collateral for said previous note, and were placed as collateral for the note involved in this suit, and the remaining portion of said collateral was to be held, as above explained, to secure the payment of the note in suit, though said additional collateral notes were out in process of collection."

The objection urged in the exception to this paragraph is:

"It seeks to vary the terms of the written note, signed by defendants, by oral evidence, and thus defeat the payment of the amount shown to be due by said note, and does not set up any defense worthy of being considered by this court, or that could properly be urged to defeat the payment of the said note, or any part thereof.'

"These defendants are unable to give a more accurate description of said $2,500 worth of up with the same as security; but they say notes, which were attached to that note and put that a part of the same was the same collateral as they put up with the note originally sued on by plaintiffs, but the defendants are unable to state what part of the same was so used, but they allege that said collateral notes were at all times in the hands of plaintiff bank, and they were in position to know the description of the same and the contents of the same.'

A pleader is not required to allege matters peculiarly within the knowledge of the opposite party, and which he shows a good excuse for not being able to state. Florida Athletic Club v. Hope Lumber Co., 18 Tex. Civ. App. 161, 44 S. W. 10.

[5] In the fifth assignment complaint is made of the action of the court in permitting defendants to open and conclude in the introduction of evidence and in the argument of the case. From the brief synopsis of the pleadings, which we have heretofore made, we think the burden of proof of the whole case rested upon the plaintiff. Rule 31 for the government of district and county courts (142 S. W. xx) provides that the plaintiff shall have the right to open and conclude, both in adducing his evidence and in the argument, unless (1) the burden of proof of the whole case under the pleadings rests upon the defendant; or (2) the defendant make the admission of record at the proper stage of the proceedings prescribed by the rule. This rule, as originally promulgated (47 Tex. 623), did not contain in the first clause the words:

"Unless the burden of proof of the whole case under the pleadings rests upon the defendant." In the absence of any allegation of fraud, This language was no doubt added in the this paragraph of the answer should have revision, in order that the rule might include been stricken out. We are unable to agree the provisions of article 1953, Revised Statwith appellant in its construction of the lan-utes, on this subject. The rule relates to guage. As we understand appellee's allega- both the evidence and the argument, but tion, referring to the $1,700, it is not an ef- the statute relates to the argument alone. fort to set up a defense, but merely a recit- Hittson v. Bank (Sup.) 14 S. W. 780. The al of the statements made by the bank's bill of exceptions under this assignment president as to the existence and location of shows that appellee declined to make the adthe collateral notes and as assurance that mission required by the rule. We therefore they would be held to secure the note for conclude that the court permitted them to $2,500. Reference to the bill of exception open and close upon the idea that the burden shows that the evidence did not sustain the of proof upon the whole case under the The decisions allegation in full. Of course, if the language pleadings rested upon them. used by the pleader means what appellant in cases where the defendant made the reclaims it does, the exception should have quired admission, or endeavored to do so, in been sustained; but, as we understand it, order to gain the right to open and close, the assignment is without merit. have little or no bearing upon the question here presented. The first part of rule 31 merely states the common rule with reference to the onus probandi and the incident right to open and close. The note to Brunswick & W. R. R. v. Wiggins, 61 L. R. A., 513, 563, states and discusses what we understand to be the common-law rule thus:

[4] Under the third assignment, appellant insists that paragraph 2 of the defendant's first supplemental answer is too indefinite and uncertain, in that it fails to particularize the collateral which it is alleged was misapplied and changed from one note to another by the bank. Appellees excuse their inability to point out the particular note or "In Best's little work, 'Right to Begin and Renotes and other collaterals which had been ply,' it is stated that by the affirmative of the issue is meant the affirmative in substance, and collected and misapplied by the following, not the affirmative in form; i. e., that the judg

whom the onus probandi lies, and consequently held that in this state of the pleadings the in whom the right to begin resides, will consider, appellee had the burden upon the whole case. not so much the form of the pleadings, as the To the same effect is the holding in Heath v. substantial question between the parties, and will cast the onus probandi on the party with First National Bank, 19 Tex. Civ. App. 63, 48 whom the real affirmative seems to lie. The S. W. 123. In the instant case, notwithauthor then goes on to give two cases which af- standing the admissions in appellees' original ford, in terms, two different tests for the discovery as to with which party the affirmative lies, answer and supplemental pleading, the burand states that they are the same proposition den rested upon appellant to show its right to in different dresses. In the first of the cases recover upon one of the notes declared upon; mentioned, Amos v. Hughes (1835) 1 Moody & that defendants were liable because of their R. 464, the test was laid down by Alderson, B., to be which party would be successful if no interest as stockholders in the Lankford Furevidence at all were given, as upon the opposite niture Company, and their assumption of party would necessarily rest the onus probandi, the debt and the pleadings of defendants and, according to the author, the consequent right to begin. In the other case, Willis v. Bar- necessarily cast upon them the burden of ber (1836) 1 Mees. & W. 425, 5 Dowl. P. C. showing a proper distribution and application 77, 2 Gale. 5, 5 L. J. Exch. N. S. 204, the same of the proceeds of the collaterals, as well as judge, in holding that a defense to an action on the agreement that the proceeds were to be a bill of exchange against the exceptor that the bill had been accepted without consideration for applied upon two different debts. The right the accommodation of the drawer, and had been to open and close is a valuable right and subsequently indorsed to the plaintiff without especially so in cases where the issues of consideration, * * * placed the onus pro- fact are clearly drawn and sharply contested, bandi on the defendant notwithstanding the affirmative shape of the replication, said: The as in the instant case. We think the court replication is in the affirmative, but it is in an- committed reversible error in granting the swer to a negative. Upon the question as to right to appellee. Cunningham v. Daves, 141 who is to begin, is it not the proper test to ex- S. W. 808; Meade v. Logan, 110 S. W. 188; amine whether, if the particular allegation be struck out of the plea there will or will not be a Sanders v. Bridges, 67 Tex. 93, 2 S. W. 663. defense to the action?' Thus the two general In the case last cited, Willie, Chief Justice, rules * * * are: (1) To conceive the nega- said: tive and affirmative allegations by which the issue is joined both struck out of the record, and then the onus probandi lies on the party against whom the judgment must, in their absence, pass; (2) to consider at the trial which party would succeed if no evidence at all were given, as the onus probandi must lie upon his adversary. In the natural course of litigation this burden and right usually reside with the plaintiff, the party who initiates the action, proceeding or suit; and, this being so, it follows that, so long as the affirmative of any substantial issue, however slight, remains with the plaintiff, he retains the right to open and close, even though the affirmative of a majority of such issues is with the defendant. ** * Whenever the general issue is in the case, the plaintiff has the right to open

and close. *

* The result of an examination of all the authorities on the subject shows that the general rule or principle at common law is that, where the defendant does not admit the entire demand of the plaintiff, and where there are several issues, if the plaintiff is called on to maintain a single one, he retains and has the right to open and close; that the burden of proof, with its incident right to open and close, naturally and necessarily is, in the first instance, with the plaintiff, or party who initiates the action, suit, or proceeding, and remains with such party so long as it continues incumbent on him to make any proof whatever; that when the defendant, either by an admission in express and absolute terms, or by refraining from denial of plaintiff's cause of action and alleging affirmative matter in avoidance of it, renders it wholly unnecessary for the plaintiff to give any evidence whatever to have a complete recovery of all that he claims, the burden and right are with the defendant."

The rule is further illustrated by the Supreme Court, in Kennedy v. Upshaw, 66 Tex. 442, 1 S. W. 308, where appellee offered a will for probate. Appellant contended that the instrument offered by appellee and the codicil offered by him (appellant) should be taken together and probated as the last will of the deceased. The appellee charged that

"The right of which he was deprived is statutory, and in this case may have been of importance to the plaintiff, and we cannot say that his rights were not prejudiced in being deprived of his proper position in the trial of the cause."

The correct rule we think is announced in Ann. Cas. 1912D, 254, note, where it is said: "In Texas * it seems to be the rule that the denial of the right to open and close is not a ground for reversal, if it is apparent from the record that no injury resulted, but that if it is not so apparent a new trial will be granted."

[6] Appellant insists that the court erred in permitting the defendant Wheatley to detail a conversation alleged to have taken place between himself and Le Master, president of appellant bank. This contention is made the basis of the sixth assignment of error.

Most of the evidence objected to we think was admissible, under the issue, tendered by appellees' pleadings, that the proceeds of some of the collateral attached to the debt as evidenced by the various notes, had been misapplied by the bank. The objection being to the whole of the testimony and part of it being admissible the court did not err in overruling the objection. Wandelohr v. Grayson County National Bank, 106 S. W. 413; Id., 102 Tex. 20, 108 S. W. 1154, 112 S. W. 1046.

[7] The defendant Morris was permitted to testify that he signed the note of April 1, 1913, as a surety. We think this was error. One of the issues made by the pleadings is whether Morris was a principal or a surety. Appellant contended that he had executed the note under circumstances which made him liable as a principal debtor. His status and relation to the debt was a mixed question of