(218 S.W.) amount written in note itself was false, when I shorter, and entire bill would not exceed $60, he was authorized to write some amount? The object of this testimony it seems was to show that Rheiner systematically made fraudulent entries in the accounts of various customers of the bank, imposing improperly, by fraud, liabilities on them, presumably to hide his own fraud and embezzlement by a system thus inaugurated and followed, as throwing light on his conduct to show fraud in this transaction. Here the controversy is upon notes signed by appellant. The objection of appellant went further to the testimony offered than as to whether such proof properly presented might be admitted, and the objection was: "Said testimony as to what the books showed in refenerce to other accounts, in no way connected with the defendant's account, because the same was irrelevant and immaterial and could serve no purpose in the case, or throw any light on the issues involved, and, further, that such matters would not show system on the part of said F. J. Rheiner, and that said entries, books, ledgers, papers, and records of said bank were voluminous and lengthy, and it would be an unreasonable consumption of time to go through same, and would be only the opinion and conclusion of the witness, based on hearsay of extraneous matters all of which said objections were thereupon sustained by the court, to which the defendant then and there excepted, and then defendant offered to examine said witness of the plaintiff, Jake Schwartz, further on the subject, and show by him that he was familiar with the said books, etc., and that he knew what they showed and contained, and then show what same showed in reference to false entries and forgeries on such records, books, papers, etc., in reference to the accounts of others than the defendant and in no way connected with his account, to which the plaintiff again objected that the same was irrelevant and immaterial and would throw no light on the issues in the case, and did not tend to prove system on the part of the said F. J. Rheiner and would be his opinion based on hearsay, in no way connected with the defendant, which said objections were again sustained by the court, and the evidence was excluded and not permitted to go before the jury." In support of the contention of appellant, he cites and mostly relies upon the case of Compagnie Des Metaux Unital v. Victoria Manufacturing Co., 107 S. W. 653. The facts in the case showed, from the depositions of about 11 witnesses who had dealings with Stern, the agent, in purchasing he substituted the word "feet" for "inches" in order to enlarge the sale. For instance, in the cited case the issue was as to whether the order was for bars of steel sold to appellee from 12 to 18 inches and the costs to be from $40 to $60, while Stern, appellant's agent, claims they were to be from 12 to 18 feet in length, and to cost 39 cents per pound delivered. In every case the bars, when received, were from 12 to 18 feet, and nearly all the witnesses testified the bars were to be much and in every case the purchase was for bars from 12 to 18 inches and not feet. In discussing this case, supra, the court said: "When the shipment arrived, it was at least five times what the purchaser thought he had ordered. The objections to this testimony were directed to all of it collectively; the reasons urged being 'that it was irrelevant and immaterial, and thrust new issues in the case, and because it did not show a fraudulent system pursued by Stern.' When the intent with which an act is done becomes material, it is competent to resort to other acts of the party whose conduct is brought in question, in order to ascertain his real purpose in the case being considered; but such acts must be those of a similar kind, and so connected with the transaction under consideration in point of time as that they all may be regarded as parts of a system. Raby v. Frank, 12 Tex. Civ. App. 125, 34 S. W. 777; Dwyer v. Bassett, 1 Tex. Civ. App. 513, 21 S. W. 621; Bank v. Wisdom's Ex'rs, 111 Ky. 135, 63 S. W. 461; Bradner on Evidence, 14; 6 Ency. Evidence, 33-38, and cases cited. It is not essential to the admissibility of this class of evidence that each of the other transactions offered should, within itself, furnish conclusive evidence of a fraudulent intent in its performance; but it is sufficient if each is shown to be parts of a systematic course of dealing, which, when considered in its entirety, tend to furnish evidence of a fraudulent intent. As error occurring in one transaction alone might justly be attributed to inadvertence or an honest mistake, while if the same error, or one substantially the same, should occur in a series of transactions of a similar kind, this would probably furnish sufficient evidence of fraud. We think there was no error in the admission of the testimony." Allowing testimony of this nature in a proper case is rather dangerous, and to be controlled by the greatest care by the trial judge, and confined to cases of fraud of like character and similar nature to the case that may be under investigation, a systematic scheme of fraud and peculation that would tend in a controversy involving similar frauds, so that the wrongdoer might be weighed in the scales, as one who being in the habit of practicing just such intended frauds, the jury might, under all the circumstances, turn the balance against him. But we do not believe the testimony offered by the witness Schwartz was admissible for any purpose. Aside from tending to establish any probative fact, his testimony would not only have been incompetent and immaterial, but would have been hearsay. The best testimony of the facts susceptible of proof was not set out as tendered in the bill of exceptions; if admissible for any purpose, could not have been proven in the manner alleged. It did not tend to prove the fraudulent intent and practices in cases like this. Kingsbury v. Bank, 30 Tex. Civ. App. 387, 70 S. W. 553; Levy v. Lee, 13 Tex. Civ. App. 510, 36 S. W. 309; Ettlinger et al. v. Kahn, 134 Mo. 492, 36 S. W. 1 all. Fraud wholly disconnected and in no sense embraced in a plan or scheme to defraud is no more admissible to establish the alleged fraud than it would be to prove by general reputation his character for dishonest dealings generally with others. 37. But here it is not denied that the note [ had similar transactions with those under was signed by appellant. It is not denied investigation. There was no case tendered that Rheiner had authority to fill in the showing signed notes by other customers, deamounts of overdrafts. It was not denied livered to and authorizing the cashier to fill that Rheiner made the entry, and that entry in the amounts due, as in this case. There corresponded with the face of the note. The is no similarity in the several transactions at testimony offered was embraced in another scheme of fraud, wholly disconnected with this, for if amount in note was correct, the entry itself was correct. There was testimony of at least three witnesses, stating that when appellant came to the bank before the suit was brought to investigate concerning the two notes, the one sued upon for $3,038 and the other for $2,940, he admitted his liability, or rather that this $3,038 was a renewal, embracing therein the former $2,940. This was denied by him. Of course when the intent with which an act is done becomes material, it is compe tent to resort to other fraudulent acts, precisely similar, to ascertain the real purpose and intent moving the perpetrator of the wrong by measuring him by the standard of his similar frauds connected with the transaction in point of time under investigation systematically indulged in by him in respect to other parties similarly situated. Then the scienter and motive are involved, and a series of similar acts of the defendant charged with fraudulent purposes and his wicked intent and fraudulent practices often indulged in become subjects of inquiry. Raby v. Frank, 12 Tex. Civ. App. 125, 34 S. W. 777; Dwyer v. Bassett, 1 Tex. Civ. App. 513, 21 S. W. 621; Quanah Ry. Co. v. Bone, 208 S. W. 709; Day v. Stone, 59 Tex. 612; Hunter v. Lanius, 82 Tex. 684, 18 S. W. 201; Cook v. Greenberg, 34 S. W. 688; Posey v. Hanson, 196 S. W. 731; M., K. & T. Ry. Co. v. Killett, 168 S. W. 979; Citizens' Bank v. Slaton, 189 S. W. 742; Quarles v. Hardin, 197 S. W. 1112. The bill of exception shows an offer to prove by the witness Jake Schwartz, not from any personal knowledge of the matters himself, but what the books purported to show as to forgeries and false entries in respect to various accounts of others made in the books of the bank by F. J. Rheiner during the time he was cashier, covering the years 1917 and 1918. While the names of such other persons were mentioned in the bill, none of them were tendered as witnesses in court to prove any of the alleged facts, though at the end of the bill it is recited the court "would not permit any evidence of any other false entry, forgery, or other act of the! said F. J. Rheiner to be introduced in evidence other than those relating to the defendant's account," but no tender of such other proposed proof was made. We cannot go outside of the bill, aside from the fact that such proof as tendered in the bill itself was objectionable on the ground of being hearsay. It is not pretended that the persons named We cannot give our assent to appellant's proposition, where an issue is made involving fraud, any act of the party showing motive or intent is admissible, or, where for gery is pleaded, any act happening about the same time is a circumstance to go to the jury to be weighed by them as any other circumstance. That would be a dangerous doctrine. To admit such testimony, much more is required to be shown to make it admissible. [4] In the second assignment appellant complains that the court erred in refusing to permit appellant to introduce the indictments against F. J. Rheiner for forgery. This cannot be sustained. Such evidence was immaterial and irrelevant, and would have been highly prejudicial. It was not the way to establish guilt. It would not prove that he had forged. There must have been better evidence of the fact. It would not have established, or tended to establish, the fact that he had written in the note left with him to fill in the wrong amount, or that he forged them at all. If such testimony be admissible as impeaching testimony, Rheiner had not testified in the case to lay the predicate. [5, 6] Appellant's third assignment of error, complaining of the court's refusing to give his seventeenth special issue charge, is, to wit: "Defendant having filed a plea of non est factum to the $2,940 note, and not having in his pleadings admitted the execution of same, I charge you that the burden of proof is on the plaintiff throughout to prove its execution by the defendant." The propositions thereunder are that when a plea of non est factum is imposed, it is the duty of the court to give a special charge on the burden of proof; and, secondly, when plea of non est factum is made to both notes, burden should also be charged as to execution of first note. in his general charge: "Where the defendant, under oath, denies the execution of a note, the plaintiff has the burden signature to a note sued on in a plea of non est of proof; but, where the defendant admits the factum, the burden of proving that it was fraudulently filled out over his signature rests on him." (218 S.W.) We think this sufficiently charges on the burden of proof. Jackson v. Graham, 205 S. W. 757. Again the court submitted to the jury the special issue as to the execution of the note by appellant, and the jury found he did execute it. There was proof that he admitted giving the note for $2,940 renewed in the note for $3,080. The jury could not have mistaken the instruction as to where the burden of proof rested. The burden was on appellant to show how he was injured. When the defendant under oath denies the execution of a note, the burden of proof is on the plaintiff to establish its execution. But when in the plea of non est factum the signature of the note is admitted, but sought to be avoided by the plea that the amount filled in is different in amount from the true amount authorized to be filled in the blanks left for the true amount when ascertained, the burden of proof is shifted to the party to show he has been injured, as well as the error committed by the court in the refusal. As said by Judge Gaines in Newton v. Newton, 77 Tex. 508, 14 S. W. 157: “Such a plea was interposed in this case, and appellants now contend that the court erred in refusing to charge the jury that the burden was upon the plaintiff to prove that there was a valuable consideration for the note. The note imported a consideration, and the burden was upon the defendants to show that there was none. The effect of the sworn plea was not to shift the burden of proof, but merely to put the consideration in issue. It is also complained that the court erred in charging upon a failure of consideration. If there was originally a valuable consideration to support the note, it could not be defeated by parol proof that the father agreed at the time it was executed to demand payment only in the event it was necessary for his maintenance and support. This would be to vary a written contract by parol evidence. The issue in the case was whether or not there was a want of consideration for the note, and it was error to charge upon a failure of consideration. This, however, it seems to us, was not prejudicial to appellants." [7] Special issues given or refused are not always controlled by rules applicable to special charges. Such special issues frequently are so framed for a finding as to indicate the burden, or, in other words, the direction to find so specific as to need no instruction as to how to find. However, when the court has not instructed on the burden of proof, the court should, when requested to do so, if necessary for the better aid and guidance of the jury. Iowa City Bank v. Milford, 200 S. W. 883; Polk v. Inman, 211 S. W. 261; Lanham v. West, 209 S. W. 258; G., H. & S. A. Ry. Co. v. Cook, 214 S. W. 540; Kansas City v. Odom, 185 S. W. 626; Davis v. Davis, 20 Tex. Civ. App. 310, 49 S. W. 728; City of Victoria v. Victoria County, 115 S. W. 68. [8] The court in its general instruction 218 S.W.-40 charged the jury when the want of consideration of a note is denied under oath the burden of proving the note is on plaintiff. Taylor, B. & H. Ry. Co. v. Taylor, 79 Tex. 104, 14 S. W. 918, 23 Am. St. Rep 316. This is a correct proposition of law, and needs no further amplification. [9] The court submitted to the jury, Did appellant execute the note for a consideration? and they said he did. Was note for $3,038 delivered to bank as a renewal of the $2,940 note? and they said it was, and further answered the court in reply to appellee's special issue No. 1, given, that note $3,038 was not fraudulently filled out without appellant's authority over his signature. The issues submitted were plain, and could not have been misunderstood by the jury, and they covered all the questions in the case very clearly, and are sufficient. N. A. A. Ins. Co. v. Miller, 193 S. W. 759. [10] Appellant complains in fourth assignment that the court erred in refusing to give his special charge: "Has the plaintiff in this case shown by a preponderance of evidence that the $2,940 mentioned in the pleadings and evidence was executed by the defendant in this case, or by his authority? Answer Yes or No." In a proper case the court should instruct the jury on the preponderance of evidence, but hardly for them to ascertain if there was a preponderance of evidence. Anyway, the refusal of such a charge here is not error, for the court has sufficiently defined to the jury where rests the burden of proof on the issues presented in the case. [11-13] The fifth assignment is to same effect, and overruled, and the sixth is to the effect that the jury are instructed to ascer tain if the plaintiff has shown by a prepon derance of evidence that the note sued on was filled in, in the sum of $3,038, with authority of appellant as it is written. The proposition thereunder is: "Where a party gives another party the right to sign his note, and places a limitation on this authority, all parties interested must take notice of the limitation of authority." Appellant gave notes to Rheiner, which he signed, to take up his overdrafts. He gave five or six of such blank notes. Appellant places great reliance upon the case of Connor v. Uvalde National Bank, 156 S. W. 1092, decided by this court, to sustain his contention on the point. That case is, if anything, authority against appellant. Besides, the facts are not similar, except in the Connor Case there was authority given to sign his name as surety on a renewal note. He was already surety on first note, but no general authority to sign notes given. A note was signed, including interest, making him joint and principal obligor with others in which no authority to do so was given, and defendant denied its execution by a sworn plea of the theory and doctrine of limited authority does enter into the question, to affect the rights of the appellee in this case. non est factum. The bank took the position the agent of appellant, and not appellee, and the authority given carried with it the right to sign any note payable to it. The court very properly held the burden of proof was on the plaintiff to show authority to sign the particular note and the extent of authority. Here the question is very different. Appellant in this case signs the note himself. A note properly signed and delivered by a party is prima facie evidence of its execution as well as its consideration. A note, properly signed and delivered, carries with it verity, and no question of limitation of its execution arises. The consideration may be attacked, as was done here, and its true amount questioned, as done here. This case resolved itself finally down to the issue as to whether the true amount that appellant owed the bank as disclosed by the note was correct. He did not deny his signature. He did not deny he gave the authority to fill in the blank space in the note, but that the true amount was not placed therein. In the Connor Case, Seawell was only authorized to sign Connor's name to a renewal note as surety for the principal amount of the note. Connor was on the first note already as surety, and Seawell represented to him all interest was paid before consent was given him to sign. When the note was signed, interest was included in it, and it was made a joint and several note, binding him as principal with others. There was only special authority to do one thing. In this case under discussion the cashier of the bank was made the agent of appellant generally to fill amounts in that he overdrew from the bank from time to time. It cannot be contended under the facts the cashier was the agent for the bank in the transaction. He was doing this as the agent of and for the accommodation of appellant. See Hilliard v. Lyons, 180 Fed. 685, 103 C. C. A. 651, in which case is cited case of Terrell v. Bank, 12 Ala. 502, which latter case is where "a note was executed in blank and delivered by the maker to the director of a bank, to be filled in for a certain sum and used in renewal of one that had been already discounted. The director, however, filled out the note for a larger sum, and had it discounted for his own benefit, and appropriated the proceeds, and it was held that this could not be set up by the maker of the note to avoid responsibility on it." The court say: "It cannot be admitted * * that in receiving the blank of the defendant to be used for his own benefit, Scott (the director) acted as agent of the bank; and certainly he did not thus act in abusing the authority conferred on him by the defendant." When Rheiner was given by Goree said blank note to fill, only to meet overdrafts, he (Rheiner) was the agent of Goree, and when he used the blank for another purpose (as is contended for by appellant) he was still If the bank was charged with any knowledge, it would have known these notes were signed by appellant, in which were to be written the true amount. Here the only fact to be established was whether the amount was written correctly therein. Here let us say the bank knew the agency the appellant had established for Rheiner to fill in the note. That fact, then, was established, and no burden was cast on the bank to establish that agency that parties dealing with agents must establish. As was said in the Connor Case: "Whether the assumed agent be general or special," persons "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." In the Connor Case the court instructed a general verdict. In this case matters were submitted to a jury to ascertain the facts, and upon all the evidence found all the facts against appellant. There are 17 assignments of error, and each in various ways and forms presents substantially the same questions as those we have discussed, and to discuss them further would be to discuss practically over and over again the same questions. We find no reversible error assigned, and they are over ruled. The judgment is affirmed. On Motion for Rehearing. Appellant very earnestly urges us to reconsider our opinion, and to examine authorities not heretofore presented by him. We have done that, and briefly give our reasons for overruling it. All the issues in this case were plainly and correctly submitted by special charges, which the jury answered in favor of appellee. There is complaint again urged that the trial court erred in refusing to give the appellant's special charge No. 3, requested, to the effect, Has plaintiff shown by the preponderance of evidence that the $2,940.00 mentioned was executed by defendant or by his authority? We say this charge had been sufficiently given, and it was. The appellant labors under very great misapprehension in saying that we hold a jury should not be instructed that the plaintiff is required to establish his case by the preponderance of evidence. No such charge is requested or refused. The books of the bank showed the entry of the note of $2,940, against appellant. Appellant's own testimony showed Rheiner was authorized to fill in the amounts. There was testimony showing Rheiner admitted his li ability, in that the $3,038 note sued on was (218 S. W.) a renewal of the former $2,940, and this tes- I chaser was unconditionally accepted by plaintiff, timony supported the findings of the jury. and that defendant, purchaser was notified there[14] It is true the cashier of a bank having of by June 1st, was warranted by evidence of large authority is an agent of the bank with acceptance on June 1st; "by" meaning on or in the scope of his authority. But when he before (citing Words and Phrases, First and Second Series, By). exceeds them, the bank will not be bound. Ledgerwood v. Dashiell, 177 S. W. 1012. [15] If Rheiner exceeded his authority in 、writing in a false amount in the note, appellant could defeat the improper amount, because the bank, through him, would have all the information Rheiner would have of the matter. While, as stated, Rheiner would as a matter of law be the agent of the bank to do its lawful acts, he was not the agent of the bank empowered to fill in amounts in appellant's notes. But his dual capacity would bring home to the bank knowledge of everything he knew. Now this dual capacity does not protect the appellant. It is well established that "He who trusts most must lose most," and a case can hardly be found where there was more trust placed than was placed in the agent. But how does this dual agency or capacity benefit appellant? The issue was directly submitted as to whether or not he owed the $2,940, and whether it was embraced in the $3,038, and the jury found against him. As there was proof to support the findings, we do not feel authorized to set them aside. The motion for a rehearing is overruled. ARMSTRONG v. PALMER et al. (No. 1569.) 1. PRINCIPAL AND AGENT 145(3)—ACCEPT- 4. APPEAL AND ERROR 1073(3)—ERROR IN ENTERING JUDGMENT IN FAVOR OF AGENT FOR Where vendor and his agent joined in suit to recover sum agreed as liquidated damages for purchaser's breach, and it was pleaded, though not proven, that vendor assigned a part of cause of action to the agent defendant could in favor of the agent for part of recovery, since not be harmed by error in entering judgment the pleading of an assignment of part of the cause of action would be sufficient to bind vendor in the judgment rendered. On Motion for Rehearing. 5. VENDOR AND PURCHASER 151-RIGHT TO VENDOR'S PERSONAL WARRANTY. A contract obligating vendor to furnish abstract and deed and to show good and merchantable title held a personal one, entitling the purchaser to a warranty of the title from the vendor, who, as part owner of the land, could have fulfilled his contract either by taking deeds from the other owners of the land to himself and executing his own deed to the purchaser, or perhaps by securing deed to the purchaser from the other owners for the parts of the land owned by them and executing his own warranty of the title to all the land. 6. VENDOR AND PURCHASER 148-PURCHASER'S REPUDIATION MADE TENDER OF DEEDS UNNECESSARY. Purchaser's repudiation of contract before time for delivery of deeds made formal tender of deeds by vendor unnecessary. 7. VENDOR AND PURCHASER 144(1) —LIA- THORITY FROM OTHER OWNERS IS BINDING with a vendor who does not have the title him ON THEM. Where real estate agent employed by the owner of a quarter of a section made executory contract subject to approval of such owner for sale of the whole section, and such owner, before communicating his acceptance, procured authority from owners of the other three-quarters to go ahead with the contract, the contract was made under authority of owners of the three quarter sections and was binding upon them after acceptance by the first owner in his own name alone. 2. FRAUDS, STATUTE OF ~116(5)—AUTHOR ITY TO MAKE EXECUTORY CONTRACT FOR SALE Authority to make an executory contract for Jury finding that contract made by plaintiff vendor's real estate agent with defendant pur self, but who at the proper time is ready to make the title contracted for, depends on the answer to the query as to whether the vendor is a bona fide contractor. Appeal from District Court, Swisher County; R. C. Joiner, Judge. Suit by R. S. Palmer and another against H. W. Armstrong and another. Judgment for plaintiffs, and defendant named appeals. Affirmed. W. F. Hendrix, of El Paso, and Williams & Martin, of Plainview, for appellant. Culton & Taylor and Dennis Zimmermann, all of Tulia, for appellees. BOYCE, J. This suit was brought by R. S. Palmer and E. Brooks against H. W. Armstrong and the First National Bank of Tulia For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |