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FIRST STATE BANK V. COOPER

295

6. TRIAL O 85 - ADMISSION OF EVIDENCE — FIRST STATE BANK OF AMARILLO V.

OBJECTIONS-EVIDENCE ADMISSIBLE IN PART, COOPER et al. (No. 817.)

There was no error in overruling an objec

tion to the whole of testimony, part of which (Court_of Civil Appeals of Texas. Amarillo. was admissible. June 26, 1915. Rehearing Denied

[Ed. Note.--For other cases, see Trial, Cent. Oct. 9, 1915.)

Dig. $$ 222–225; Dec. Dig. Om 85.] 1. APPEAL AND ERROR Om 1040 HARMLESS 7. EVIDENCE 471, 472–FACT OR CONCLUERROR-RULINGS ON PLEADING.

SION. In an action on a note, error, if any, in In an action on a note, where one of the isoverruling plaintiff's exception to a part of de- sues of fact and law made by the pleadings fendants' answer, because not presenting the is- was whether one M. was a principal or a surety, sue of fraud, was harmless, where that issue his statement that he was a surety involved a was presented by the supplemental answer, on legal conclusion from the facts and circumstanc

, [Ed. Note.-For other cases, see Appeal and of the jury. Error, Cent. Dig. 88 4089-4105; Dec. Dig. Om [Ed._Note. For other cases, see Evidence, 1010.)

Cent. Dig. $$ 2149-2195, 2248; Dec. Dig. Om 2. EVIDENCE @ww 434-PABOL EVIDENCE-Note 471, 472.] -FRAUD.

8. BILLS AND NOTES 511-ACTION-ISSUES Where fraud was alleged in the answer of AND EVIDENCE. sureties to an action on a note with respect to In an action on a note, with an allegation the plaintiff's representation as to the applica- of an agreement that the collateral should be tion of collateral to the note, parol evidence of divided between the note and another, evidence the agreement was admissible.

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. 88 2005–2020; Dec. Dig. 431.) to protect the other note, was admissible.

[Ed. Note.-For other cases, see Bills and 3. PRINCIPAL AND SURETY Ow156-ACTION- Notes, Cent. Dig. 88 1760–1770; Dec. Dig. Om ANSWER—ISSUES.

511.] In an action against a surety on a note, the answer alleged that at the time of its execu- 9. BILLS AND NOTES Om 499ACTION-BUBtion the plaintiff had certain collateral, that de

DEN OF PROOF. fendants asked plaintiff as to it and were as

In an action on a note, defendants, whose sured by the president of plaintiff that part of pleadings raised the issue that plaintiff had the collateral was being collected, and that the failed to account for certain collateral, and amount collected would be credited on the note, sought relief to the extent of the value thereof, and that the part not collected would remain had the burden of showing the value of the seas security for the note. Held, not a defense curities not accounted for. to the note, but a recital of statements that [Ed. Note. For other cases, see Bills and the collateral would be held to secure the note. Notes, Cent. Dig. 88 1682, 1695-1697; Dec. Dig.

[Ed. Note.-For other cases, see Principal and Ow499.] Surety, Cent. Dig. $$ 423-426; Dec. Dig. Om 10. TRIAL 252 - SUBMISSION OF ISSUES – 156.)

EVIDENCE TO SUPPORT. 4. PRINCIPAL AND SURETY Ow156 – ACTION evidence to support the issue as to whether plain

In an action on a note, where there was no AGAINST SURETY-ANSWER-CERTAINTY.

In an action against a surety on a note, tiff had failed to account for collateral, it should an answer failing to specify the collateral not have been submitted. which plaintiff was alleged to have misapplied,

[Ed. Note.-For other cases, see Trial, Cent. and alleging that defendants were unable to give Dig. 88 505, 596-612; Dec. Dig. En 252.] a more accurate description of the collateral 11. TRIAL O 191 - INSTRUCTIONS - ASSUMPnotes, or what part of them had been so used,

TION OF FACT. and that such notes were in the hands of the

In an action on a note, an instruction that plaintiff, who was in a position to know the if the note was executed by two of the defenddescription of it, was not objectionable, as in- ants on condition that it should not be delivered definite and uncertain.

or be effective until a company and the other de[Ed. Note. For other cases, see Principal and fendant should sign as principals, and should be Surety, Cent.Dig. SS 423-426; Dec.Dig. Om 156.] held until such condition was complied with, 5. APPEAL AND ERROR 1046–TRIAL em 25 defendants would not be liable on the note, was -ARGUMENT_RIGHT TO OPEN AND CLOSE.

not objectionable, as assuming that the court I'nler rule 31 for district and county

courts thought that the first two defendants were sure

ties. (142 S. W. xx) providing that plaintiff shall have the right to open and close, unless the

[Ed. Note.-For other cases, see Trial, Cent. burden of proof under the pleadings rests upon Dig. &$ 420-431, 435; Dec. Dig. Om 191. the defendants, or the defendants make the ad- 12. PRINCIPAL AND SURETY 27-DELIVERY mission of record at the stage prescribed by the

-CONDITIONS. rule, including the provision of Rev. St. art.

Two signers of a note as principals had the 1953, relating to the argument, plaintiff bank, right to sign and deposit it with the payee, on in an action on a note, where defendant had the condition that it should not become valid until burden of showing its right to recover, that de- other principals had signed it. fendants were liable because of their interest in a company, and their assumption of its debt,

[Ed. Note. For other cases, see Principal and and where plaintiff had the burden of showing Surety, Cent. Dig. § 56; Dec. Dig. Om 27.] a proper application of the proceeds of collateral, 13. APPEAL AND ERROR 699–INSTRUCTIONS and an agreement that the proceeds were to -HARMLESS ERROR. be applied upon two different debts, the grant- In an action on a note, where it appeared ing to defendants of the right to open and close that defendants had given three separate notes was reversible error.

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. 88 4128–4131, 4134; Dec.Dig. Om and again renewed by the note in suit dated 1046; Trial,

Cent.Dig. 88 44-75; Dec. Dig. Om 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 plaintiff under each of the notės was error.

time of the execution of the note in question, [Ed. Note. For other cases, see Appeal and in suit, the president of plaintiff bank claimError, Cent. Dig. $$ 2928–2930; Dec. Dig. Om ed to have collateral security, consisting of 699.]

certain furniture notes due the Lankford Fur14. APPEAL AND ERROR 928 PRESUMP- niture Company, amounting to about $1,700; TION IN SUPPORT OF JUDGMENT.

that other such notes, worth about $800, In the absence of any information enabling it to determine error in the refusal to give were in process of collection at Panhandle charges, the presumption must be in support of and other neighboring towns, and that somethe judgment.

thing more than $280 of said $800 in notes [Ed. Note.-For other cases, see Appeal and had been collected; and that the bank would Error, Cent. Dig. $$ 3749–3754 ; Dec. Dig. Ons at once look up the exact amount and credit 928.] 15. TRIAL C194-INSTRUCTION-WEIGHT OF

same on the back of the note in suit; that EVIDENCE.

the remainder of the $800 worth of collateral In an action on a note, where there was a would remain as security to the note sued dispute as to whether or not other collateral upon. It was further alleged that plaintiff bad been substituted for the stock of defendant's bank, without defendants' consent, thereafter company, the refusal of a requested charge that the jury could not consider the capital stock took away half, or about half, of the collatof the company which had been put up as col- eral notes, and applied them to the payment lateral, because part of it had been sold before of another note due plaintiff bank, upon the execution of the renewal note with knowl, which defendants were liable; that plaintiff edge of the defendants that the proceeds had not been applied, but that other collateral was had been negligent in failing to collect the substituted, was proper, as being upon the collaterals, by reason of which defendants weight of the evidence.

had sustained a loss; that Frank Morris, Jr., [Ed. Note. For other cases, see Trial, Cent. took a number of the collateral notes for colDig. $$ 413, 436, 439-441, 446-454, 456-466; lection, some of which he collected, turning Dec. Dig. Om 194.]

the proceeds over to the bank, amounting to 16. BILLS AND NOTES Om 430, 537-RENEWAL NOTES-EFFECT.

$261.65; which should be credited on the note If either of two renewal notes constituted sued on, together with about $126.50 worth a novation, the note for which the renewals were of furniture, which was sold by the bank and given was no longer a binding obligation, and the proceeds of which should be applied as a this was a question for the jury.

credit. Defendants also claimed a further [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. $$ 1251-1256, 1862–1893; credit of $280, being the amount which plainDec. Dig. Om 430, 537.]

tiff admitted was in its possession at the time Appeal from District Court, Potter Coun- of the execution of the note in suit; that, if

plaintiff did not have in its possession said ty; Jas. N. Browning, Judge.

Action by the First State Bank of Amaril- $800 worth of collateral notes, it perpetrated lo, Tex., against W. P. Cooper and others. a fraud on defendants in making such repJudgment for defendants, and plaintiff ap- suit was executed, defendants signed it upon

resentations; that, at the time the note in peals. 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 appel- also sign it, and that this was never done, lees.

thereby releasing them.

Plaintiff filed several supplemental petiHALL, J. The original petition filed by ap- tions, alleging, among other things, that the pellant bank was to recover the amount due defendants were stockholders and directors on a promissory note of $2,500, dated April in the Lankford Furniture Company, a cor1, 1913, bearing interest at 10 per cent. from poration, which had become bankrupt prior date and providing for 10 per cent, attorney's to the execution and delivery of said note; fees, signed by W. P. Cooper, R. R. Wheatley, that the indebtedness evidenced by the note and Frank Morris, Jr. The note contained had existed in varying amounts for several the usual provision waiving presentment for years, and that there was therefore no necespayment, notice of nonpayment, protest, etc. sity for any new consideration in order to The following credits were admitted in the render defendants liable thereon; that the petition: $587.50, paid August 26, 1913; a benefit received by them was the extension of number of small credits from $1 up to $10, time on the indebtedness already due. It is aggregating $116.33, being dated from June further alleged that, at the time the note 6, 1913, at various times, to November 8, 1913. described in the original petition was exe

Defendants' original answer alleged in cuted and delivered, plaintiff had certain substance that the note sued upon was given collateral notes, which were attached to anin lieu of a prior note for the same amount, other note made by said Lankford Furniture and that collateral to the value of $2,500 had Company, in the principal sum of $1,175; been put up with said previous note to pro- that, at the request of defendants, plaintiff's tect the signers of the note in suit, and that president agreed with them that in the fuTex.)

FIRST STATE BANK v. COOPER

297

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 terms of the written note signed by, defendand the other half on the note in suit; that ants by oral evidence, and that the effect this was done, and the credits made simply of the evidence was to prove an amount realas a favor to defendants without any con- ly different from that stated in the face of sideration or legal duty resting upon plaintiff the obligation. Fraud in the execution of the to do so; that all sums of money paid by note described in the original answer was not defendants through Frank Morris, Jr., to alleged therein; but in the first supplemental plaintiff, have been credited in accordance answer (which repeats many of the facts set with said agreement, with the full knowledge up in the original answer, and by reference to and consent of all defendants.

the original answer urges the defenses there By first supplemental answer, defendants, set up to the note originally sued upon also among other things, alleged that the note in in defense of the note dated November 1, suit was given in lieu of a note dated Novem-1912), it is alleged that the statements made ber 1, 1912, executed by the Lankford Fur- by plaintiff's president, to the effect that the niture Company, H. C. Lankford, Frank Mor- amount collected upon the collateral would ris, Jr., R. R. Wheatley, and W. P. Cooper, be looked up and credited on the renewal in the sum of $2,500, due and payable April note, were fraudulently made.

The error 1, 1913; that it was executed in such manner of the court, if any, in overruling this exas entitles the defendants to all of the defens-ception, is harmless. The issue of fraud bees urged to the note originally sued upon and ing squarely presented by subsequent pleadthat they set up all of said defenses to said ings, and the case having been tried with note of April 1, 1913, and further pleaded reference to the issues contained in such supthat said note was delivered with collateral plemental pleadings, no injury has resulted notes worth $2,500, which last-named notes by the court's ruling. In Ablowich v. Bank, were secured by contracts and written liens 22 Tex. Civ. App. 272, 54 S. W. 791, it is said: on furniture sold by the Lankford Furniture "No fraud, accident, or mistake in execution Company; that large sums were collected on was alleged and we must indulge the legal presaid collateral notes and the proceeds not assented to, had been merged in the written in

sumption that all prior agreements, so far as applied to either of said notes; that the col- struments executed, and that they contained the laterals were changed several times by plain-exact terms upon which the minds of both partiff or its agents, substituting for the original evidenced an absolute promise to pay $450 with

ties thereto met. The instrument sued upon collateral others of a later date; that the in a specified time, without condition, and we note sued upon and set out in the original do not think it was competent to show by parol petition was procured through fraud and that the agreement in effect contained a condifraudulent representations on the part of the tion upon which a less sum was to be paid." plaintiff, to the effect that the signature of

We must imply from the language quoted the Lankford Furniture Company and H. c. that, in accordance with the general rule, if Lankford would be secured thereto, and that fraud, accident, or mistake had been alleged, the bank would immediately ascertain the parol evidence of the agreement would have amount collected upon collaterals and credit been admissible. This assignment is overthereon, and that all collateral notes would ruled. remain with the note last executed, and but

In effect the saine contention is made unfor such fraudulent representations the note der the fourth and seventh assignments. It first sued upon would not have been executed. seems clear to us that, if the appellees

In its last supplemental petition, plaintiff signed the last note for an amount greater prayed in the alternative that, if it should than was actually due, but upon the assurbe held that it was not entitled to recover ance that the proper credits would be made upon the note described in the original peti- thereon, thereby reducing it to the correct tion, then that it be allowed to recover upon amount, and their pleadings alleged fraud the note for which it was substituted, dated on the part of the bank president in making November 1, 1912. There was a trial before such promise, it is a matter of inducement a jury, resulting in a general verdict for the which they are entitled to prove. These asplaintiff in the sum of $100.98, and from a signments present as error the action of the judgment entered accordingly this appeal is court in not sustaining a specific exception prosecuted. There is nothing in the record to to one paragraph in the original answer, indicate upon which note the jury based the setting up the execution of the note and the verdict.

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 an- "These defendants are unable to give a more swer is as follows:

accurate description of said $2,500 worth of “Defendants allege that at the time of the up with the same as security; but they say

notes, which were attached to that note and put execution of the note sued upon the plaintiff that a part of the same was the same collateral bank had as collateral for the same $1,700 as they put up with the note originally sued on worth of the same paper that was placed up by plaintiffs, but the defendants are unable to with said previous note, and defendants asked state what part of the same was so used, but the plaintiff, through its president, what had they allege that said collateral notes were at all become of the remaining portion of said collater- times in the hands of plaintiff bank, and they al security, to wit, the $800 worth of collateral were in position to know the description of the notes, whereupon the said president, who was same and the contents of the same. the duly authorized agent and representative of the plaintiff bank, told the defendants and in- A pleader is not required to allege matformed them that said $800 worth of collateral ters peculiarly within the knowledge of the was in process of collection, some of it being at opposite party, and which he shows a good Panhandle and at other places, and that something more than $280 of said $800 worth of excuse for not being able to state. Florida collateral notes had been collected, and that the Athletic Club v. Hope Lumber Co., 18 Tex. bank would at once look up the exact amount Civ, App. 161, 44 S. W. 10. that had been collected and credit the same on the back of said notes as the various items were

[5] In the fifth assignment complaint is shown on the bank book, but that it would take made of the action of the court in permitsome little time to figure up the exact amount, ting defendants to open and conclude in the and that the remaining portion of the $800 introduction of evidence and in the arguworth of collateral would remain as security for said note sued upon, making the entire ment of the case. From the brief synopsis amount equal to the notes; that said collateral ' of the pleadings, which we have heretofore

of of $ $1.700 worth of notes were in the bank at said made, we think the burden of proof of the time, and were to be as collateral for said

previ- whole case rested upon the plaintiff. Rule ous note, and were placed as collateral for the '31 for the government of district and county note involved in this suit, and the remaining courts (142 S. W. xx) provides that the plainabove explained, to secure the payment of the tiff shall have the right to open and connote in suit, though said additional collateral clude, both in adducing his evidence and in notes were out in process of collection.”

the argument, unless (1) the burden of proof The objection urged in the exception to of the whole case under the pleadings rests this paragraph is:

upon the defendant; or (2) the defendant “It seeks to vary the terms of the written make the admission of record at the proper note, signed by defendants, by oral evidence, stage of the proceedings prescribed by the and thus defeat the payment of the amount rule. This rule, as originally promulgated shown to be due by said note, and does not set (47 Tex. 623), did not contain in the first up any defense worthy of being considered by this court, or that could properly be urged to clause the words: defeat the payment of the said note, or any “Unless the burden of proof of the whole case part thereof."

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 allegation in full. Of course, if the language pleadings rested upon them. The decisions 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 [4] Under the third assignment, appellant here presented. The first part of rule 31 insists that paragraph 2 of the defendant's merely states the common rule with referfirst supplemental answer is too indefinite ence to the onus probandi and the incident and uncertain, in that it fails to particular-right to open and close. The note to Brunsize the collateral which it is alleged was mis- wick & W. R. R. v. Wiggins, 61 L. R. A., applied and changed from one note to an- 513, 563, states and discusses what we unother by the bank. Appellees excuse their derstand to be the common-law rule thus: 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 collected and misapplied by the following not the affirmative in form; i. e., that the judg

issue is meant the affirmative in substance, and Tex.)

FIRST STATE BANK V. COOPER

299

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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 necessa rily 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. Esch. 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

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 af

We think the court firmative shape of the replication, said: The as in the instant case. replication is in the affirmative, but it is in an- committed reversible error in granting the swer to a negative. l'pon 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, anil

“The right of which he was deprived is statuthen the onus probandi lies on the party against tory, and in this case may have been of imwliom the judgment must, in their absence, pass; portance to the plaintiff, and we cannot say (2) to consider at the trial which party would that his rights were not prejudiced in being desucceed if no evidence at all were given, as the prived of his proper position in the trial of the opus probandi must lie upon his adversary. In cause." the natural course of litigation this burden and The correct rule we think is announced in right usually reside with the plaintiff, the party Ann. Cas. 1912D), 254, note, where it is said: who initiates the action, proceeding or suit; and, this being so, it follows that, so long as

"In Texas

it seems to be the rule the affirmative of any substantial issue, however that the denial of the right to open and close is slight, remains with the plaintiff, he retains the not a ground for reversal, if it is apparent from right to open and close, even though the affirma- the record that no injury resulted, but that if it tive of a majority of such issues is with the de- is not so apparent a new trial will be granted." fendant. Whenever the general issue is

[6] Appellant insists that the court erred in the case, the plaintiff has the right to open in permitting the defendant Wheatley to deand close.

The result of an examination of all the authorities on the subject shows tail a conversation alleged to have taken that the general rule or principle at common law place between himself and le Master, presiis that, where the defendant does not admit the dent of appellant bank. This contention is entire demand of the plaintiff, and where there are several issues, if the plaintiff is called on to made the basis of the sixth assignment of maintain a single one, be retains and has the error. Most of the evidence objected to we right to open and close;

that the bur think was admissible, under the issue, tenden of proof, with its incident right to open and dered by appellees' pleadings, that the proclose, naturally and necessarily is, in the first instance, with the plaintiff, or party who initiates ceeds of some of the collateral attached to the action, suit, or proceeding, and remains with the debt as evidenced by the various notes, such party so long as it continues incumbent on had been misapplied by the bank. The obhim to make any proof whatever; that when the defendant, either by an admission in express anjection being to the whole of the testimony absolute terms, or by refraining from denial of and part of it being admissible the court did plaintiff's cause of action and alleging affirma- not err in overruling the objection. Wantive matter in a voidance of it, renders it wholly delohr V. Grayson County National Bank, unnecessary for the plaintiff to give any evidence whatever to have a complete recovery of all that 106 S. W. 413; Id., 102 Tex. 20, 108 S. W. he claims, the burden and right are with the 1154, 112 S. W. 1046. defendant."

[7] The defendant Morris was permitted to The rule is further illustrated by the Su- testify that he signed the note of April 1, preme Court, in Kennedy v. Upshaw, 66 Tex. 1913, as a surety. We think this was error. 412, 1 S. W. 308, where appellee offered a One of the issues made by the pleadings is will for probate. Appellant contended that whether Morris was a principal or a surety. the instrument offered by appellee and the Appellant contended that he had executed the codicil offered by him (appellant) should be note under circumstances which made him taken together and probated as the last will liable as a principal debtor. His status and of the deceased. The appellee charged that relation to the debt was a mixed question of

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