Benjamin Robert Bush, Jr. v. Texas First State Bank

• Court: Court of Appeals of Texas
• Decided: July 31, 2002
• Docket: 10-02-00006-CV
• Status: Published

Opinion

Benjmain Robert Bush Jr. v. Texas First State Bank

IN THE

TENTH COURT OF APPEALS

No. 10-02-006-CV

     BENJAMIN ROBERT BUSH, JR.,

                                                                         Appellant

     v.

     TEXAS FIRST STATE BANK,

                                                                         Appellee

From the 74th District Court

McLennan County, Texas

Trial Court # 2001-1164-3

MEMORANDUM OPINION

      This appeal is about a suit on a promissory note. Benjamin Robert Bush, Jr. purchased a vehicle with financing from Texas First State Bank. Bush signed a promissory note, and the vehicle was pledged as collateral when Bush signed a security agreement. Bush defaulted on the note, and the Bank repossessed the vehicle and sold it. After the sale, a deficiency of about $15,000 remained on the debt. The Bank sued Bush for this amount. The case was tried to the bench; Bush represented himself. The court found for the Bank and rendered judgment for approximately $23,000 which included attorney’s fees.

      The facts recited above were undisputed at trial. Bush’s only defense (and the basis of his complaint on appeal) was that the day before trial, he unilaterally drafted, executed, and served on the Bank what he entitled a “Promissory Note” which read: “I promise to pay to the order of Texas First State Bank, 4900 Sanger Avenue, Waco, Texas, the amount of Twenty-six thousand nine-hundred fifty-eight & 8/100 Dollars.” He argued that by executing this note and serving it on the Bank, he had discharged the original debt which was the basis of the lawsuit.

      As the Bank points out, the promissory note called for payment “in lawful money of the United States of America.” “Money” is defined in the Business and Commerce Code: “‘Money’ means a medium of exchange authorized or adopted by a domestic or foreign government and includes a monetary unit of account established by an intergovernmental organization or by agreement between two or more nations.” Tex. Bus. & Com. Code Ann. § 1.201(24) (Vernon Supp. 2002). Therefore, tendering the unilateral note was not a valid satisfaction of the terms of the note. Arguelles v. Kaplan, 736 S.W.2d 782, 784 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.); Fillion v. David Silvers Co., 709 S.W.2d 240, 246-47 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.). And there was no evidence that the parties entered into a modification of the original note which would allow for tender of the unilateral note in satisfaction of the original debt. Travelers Ins. Co. v. Bosler, 906 S.W.2d 635, 643 (Tex. App.—Fort Worth 1995), judgm’t vacated on other grounds, 938 S.W.2d 716 (Tex. 1997); Arguelles, 736 S.W.2d at 784; Fillion, 709 S.W.2d at 246-47.

      The fallacy in Bush’s argument is apparent from the fact that its logical extension is that he could continue to avoid payment simply by executing a series of unilateral notes. We overrule Bush’s complaint and affirm the judgment.

                                                                         BILL VANCE

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed July 31, 2002

Do not publish

[CV06]