HUGHES, Justice.
This suit is on a promissory note dated August 31, 1953, in the principal sum of $9,300.00, executed by Glen Malcolm Shine and appellant T. W. Buck, Jr., payable to J. H. (Dude) Stelfox and secured by a chattel mortgage on one H. D. Allis Chal-mers tractor. The note and lien were assigned to appellee H. M. Reed. He sought judgment against Buck on the note for principal, interest and attorneys fees and foreclosure of the chattel mortgage lien. Mr. Shine was not sued.
In a nonjury trial appellee recovered judgment in accordance with his pleading.
Appellant plead that he “executed said note as a co-maker solely for the accommodation of Glen Malcolm Shine, without any past, present, or future consideration therefor to defendant, and J. H. (Dude) Stelfox knew and understood at the time of the execution of said note by Glen Malcolm Shine and this defendant that this defendant had not received and would not receive any consideration of any nature arising from such transaction but was purely án accommodation maker of said note.”
Appellee in his Original Petition filed February 7, 1955,- the only pleading filed by him, alleged, “That the whereabouts of said Glen Malcolm Shine are unknown and that after diligent effort plaintiff has been unable to locate him.”
The Court made the following conclusions of law:
“1. T. W. Buck, Jr., was an accommodation maker of the note described in Paragraph 1 of the Findings of Fact.'
“2. H. M. Reed was not a holder in due course of said note. • •
“3. H. M. Reed was entitled to- sue T. W. Buck, Jr., without joining Glen Malcolm Shine as a party to said suit.
“4. T. W. Buck, Jr., is justly indebted to H. M. Reed in the amount of $15,370.03 plus interest at the rate of ten per cent per annum until said debt is paid.”
The Court also made, among others, the followfing findings of fact:
“26. On February 7, 1955, the day this suit was filed, and for many months prior thereto the residence, of Glen Malcolm Shine was unknown to H. M. Reed, J. H. (Dude) Stelfox and T. W. Buck, Jr., and H. M. Reed used reasonable diligence prior to filing this suit to ascertain the residence of Glen Malcolm Shine but could not do so.
“27. On October 1, 1953, Glen Malcolm Shine was actually insolvent and such condition persisted to date this suit was filed.”
Appellee does not challenge the validity of conclusions of law 1 and 2, and we accept them as correct.
Appellant challenges finding of fact No. 26 on the ground that there is no evidence to support it, and that it is so against the weight and preponderance of the evidence as to be manifestly unjust.
[481]*481Appellant does not specifically challenge the finding that Shine was insolvent.1
Appellant Buck in executing the note to accommodate his co-signer, Shine, became liable to the payee of the note, Stelfox, as a surety on the note for his comaker, Shine. Ward v. Vaughan, 298 S.W.2d 862, Galveston Civil Appeals, and authorities therein cited.
Rule 31, T.R.C.P., provides that no surety shall be sued unless his principal is joined with him except in cases otherwise provided by law. This rule and relevant statutes are set out in Johnson v. J. R. Watkins Company, 337 S.W.2d 477, Austin Civil Appeals, and will not be copied herein.
The two exceptions involved here are that the residence of the principal Shine “is unknown and cannot be ascertained by the use of reasonable diligence” and that Shine is “actually insolvent.”
The burden was on appellee to plead and prove these exceptions. Johnson v. J. R. Watkins, supra. Insolvency was not pleaded, although appellee relies upon this' exception in his brief saying that appellant does not “complain of the finding of the Trial Court to the effect that Shine was actually insolvent from October 1, 1953, to the date this suit was filed.”
There is no evidence to support this finding for the reason that it conclusively appears that Shine was not insolvent within the meaning of this exception. The reason is that this is a foreclosure suit, and it is conceivable that the property sold will pay the debt, or at least part of it. This question was decided in Smith & Co. v. Ojerholm, 93 Tex. 35, 53 S.W. 341, the Court saying:
“ * * * Hence we think that it cannot be said that a principal is insolvent, within the meaning of that statute, when any part of the debt can be made by execution against him. Such is the construction given to similar statutes by other courts. * * * The term ‘insolvency’ has widely different meanings. When a trader is unable to meet his obligations in the regular course of business, he is technically said to be insolvent. Should we apply that meaning to our statute, the indorsee would, in some cases, be excused from suing the maker of the note although he might have ample property to satisfy an execution against him. It is in a case where the principal has property, but is not in a condition to meet his debts as they fall due, that the necessity is the more urgent to bring suit for the protection of the indorser. It cannot be said that a debtor is insolvent within the meaning of our law, as to his creditor, when he holds property against which the creditor may enforce a lien for the payment of the debt.”
With regard to the exception that the residence of Shine was unknown and could not be ascertained by the use of reasonable diligence, it is our opinion that the finding of diligence (No. 26) is against the weight and preponderance of the evidence.
Appellee testified that in August, 1954 he requested his attorney to attempt collection of the note in suit, and to try to locate Mr. Shine; that at that time he did not know where Mr. Shine was and did not know his whereabouts until this case was tried in December, 1961. He also testified that he requested Mr. Stelfox to help find Mr. Shine. What Mr. Stelfox did in this regard, he did not know.
Mr. Meyers, one of appellee’s attorneys made a statement into the record regarding this matter and was questioned about it as shown below:
“MR. MEYERS: What our office did was to write to Madisonville to un[482]*482dertake to locate Mr. Shine and addressed only to Madisonville and not to a specific address, since we did not have a specific address. We also got in touch with Mr. Stelfox, and when I have no idea, to find out whether he knew where Mr. Shine was, and of course we asked Mr-. Buck jn .his .dep-. osition if he knew, and if I recall he testified in 1960 that he had no idea, which was a year and a half ago, or about a year ago and at that time he had no idea where Mr. Shine was * *. •
“MR. POLLARD: May I ask him informally — -Mr. Meyers, did you make inquiry at the Courthouse here as to the address given on the check matter — the address given by Mr. Shine on the check matter ?
“MR. MEYERS: No, sir. At that time when I made the inquiry I did not know a complaint had been filed. I learned that in the deposition.
“MR.
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HUGHES, Justice.
This suit is on a promissory note dated August 31, 1953, in the principal sum of $9,300.00, executed by Glen Malcolm Shine and appellant T. W. Buck, Jr., payable to J. H. (Dude) Stelfox and secured by a chattel mortgage on one H. D. Allis Chal-mers tractor. The note and lien were assigned to appellee H. M. Reed. He sought judgment against Buck on the note for principal, interest and attorneys fees and foreclosure of the chattel mortgage lien. Mr. Shine was not sued.
In a nonjury trial appellee recovered judgment in accordance with his pleading.
Appellant plead that he “executed said note as a co-maker solely for the accommodation of Glen Malcolm Shine, without any past, present, or future consideration therefor to defendant, and J. H. (Dude) Stelfox knew and understood at the time of the execution of said note by Glen Malcolm Shine and this defendant that this defendant had not received and would not receive any consideration of any nature arising from such transaction but was purely án accommodation maker of said note.”
Appellee in his Original Petition filed February 7, 1955,- the only pleading filed by him, alleged, “That the whereabouts of said Glen Malcolm Shine are unknown and that after diligent effort plaintiff has been unable to locate him.”
The Court made the following conclusions of law:
“1. T. W. Buck, Jr., was an accommodation maker of the note described in Paragraph 1 of the Findings of Fact.'
“2. H. M. Reed was not a holder in due course of said note. • •
“3. H. M. Reed was entitled to- sue T. W. Buck, Jr., without joining Glen Malcolm Shine as a party to said suit.
“4. T. W. Buck, Jr., is justly indebted to H. M. Reed in the amount of $15,370.03 plus interest at the rate of ten per cent per annum until said debt is paid.”
The Court also made, among others, the followfing findings of fact:
“26. On February 7, 1955, the day this suit was filed, and for many months prior thereto the residence, of Glen Malcolm Shine was unknown to H. M. Reed, J. H. (Dude) Stelfox and T. W. Buck, Jr., and H. M. Reed used reasonable diligence prior to filing this suit to ascertain the residence of Glen Malcolm Shine but could not do so.
“27. On October 1, 1953, Glen Malcolm Shine was actually insolvent and such condition persisted to date this suit was filed.”
Appellee does not challenge the validity of conclusions of law 1 and 2, and we accept them as correct.
Appellant challenges finding of fact No. 26 on the ground that there is no evidence to support it, and that it is so against the weight and preponderance of the evidence as to be manifestly unjust.
[481]*481Appellant does not specifically challenge the finding that Shine was insolvent.1
Appellant Buck in executing the note to accommodate his co-signer, Shine, became liable to the payee of the note, Stelfox, as a surety on the note for his comaker, Shine. Ward v. Vaughan, 298 S.W.2d 862, Galveston Civil Appeals, and authorities therein cited.
Rule 31, T.R.C.P., provides that no surety shall be sued unless his principal is joined with him except in cases otherwise provided by law. This rule and relevant statutes are set out in Johnson v. J. R. Watkins Company, 337 S.W.2d 477, Austin Civil Appeals, and will not be copied herein.
The two exceptions involved here are that the residence of the principal Shine “is unknown and cannot be ascertained by the use of reasonable diligence” and that Shine is “actually insolvent.”
The burden was on appellee to plead and prove these exceptions. Johnson v. J. R. Watkins, supra. Insolvency was not pleaded, although appellee relies upon this' exception in his brief saying that appellant does not “complain of the finding of the Trial Court to the effect that Shine was actually insolvent from October 1, 1953, to the date this suit was filed.”
There is no evidence to support this finding for the reason that it conclusively appears that Shine was not insolvent within the meaning of this exception. The reason is that this is a foreclosure suit, and it is conceivable that the property sold will pay the debt, or at least part of it. This question was decided in Smith & Co. v. Ojerholm, 93 Tex. 35, 53 S.W. 341, the Court saying:
“ * * * Hence we think that it cannot be said that a principal is insolvent, within the meaning of that statute, when any part of the debt can be made by execution against him. Such is the construction given to similar statutes by other courts. * * * The term ‘insolvency’ has widely different meanings. When a trader is unable to meet his obligations in the regular course of business, he is technically said to be insolvent. Should we apply that meaning to our statute, the indorsee would, in some cases, be excused from suing the maker of the note although he might have ample property to satisfy an execution against him. It is in a case where the principal has property, but is not in a condition to meet his debts as they fall due, that the necessity is the more urgent to bring suit for the protection of the indorser. It cannot be said that a debtor is insolvent within the meaning of our law, as to his creditor, when he holds property against which the creditor may enforce a lien for the payment of the debt.”
With regard to the exception that the residence of Shine was unknown and could not be ascertained by the use of reasonable diligence, it is our opinion that the finding of diligence (No. 26) is against the weight and preponderance of the evidence.
Appellee testified that in August, 1954 he requested his attorney to attempt collection of the note in suit, and to try to locate Mr. Shine; that at that time he did not know where Mr. Shine was and did not know his whereabouts until this case was tried in December, 1961. He also testified that he requested Mr. Stelfox to help find Mr. Shine. What Mr. Stelfox did in this regard, he did not know.
Mr. Meyers, one of appellee’s attorneys made a statement into the record regarding this matter and was questioned about it as shown below:
“MR. MEYERS: What our office did was to write to Madisonville to un[482]*482dertake to locate Mr. Shine and addressed only to Madisonville and not to a specific address, since we did not have a specific address. We also got in touch with Mr. Stelfox, and when I have no idea, to find out whether he knew where Mr. Shine was, and of course we asked Mr-. Buck jn .his .dep-. osition if he knew, and if I recall he testified in 1960 that he had no idea, which was a year and a half ago, or about a year ago and at that time he had no idea where Mr. Shine was * *. •
“MR. POLLARD: May I ask him informally — -Mr. Meyers, did you make inquiry at the Courthouse here as to the address given on the check matter — the address given by Mr. Shine on the check matter ?
“MR. MEYERS: No, sir. At that time when I made the inquiry I did not know a complaint had been filed. I learned that in the deposition.
“MR. POLLARD : Immediately preceding the filing of this suit, did you or Mr. Gay ask Mr. Buck where Mr. Shine was?
“MR. MEYERS: I did not. I don’t know what Mr. Gay did. Mr. Gay did write Mr. Buck a letter with a copy to Mr. Shine, dated August 23, 1954, which I can hand you.
“MR. POLLARD: Now, the copy to Mr. Shine was the one that you referred to as having been written to Madisonville ?
“MR. MEYERS: Correct.
“MR. POLLARD: You did not write a direct letter to Shine himself, but you sent him a copy of the letter that had been written to Buck?
“MR. MEYERS: That is correct.
“MR. POLLARD: And that was in fact sent to General Delivery, Madison-ville, since it was merely addressed Madisonville, Texas?
“MR. MEYERS: Yes, and Madi-sonville is a small town.
“MR. POLLARD: You had no box number but only General Delivery, so from the post office, the general address, they just returned the envelope marked ‘Address Unknown’?
“MR. MEYERS: It says on the thing, ‘Moved, no order,’ I' think. I will hand you the envelope and we can introduce it into evidence.
“MR. POLLARD: I think that is a correct reading of the handwriting.
“MR. MEYERS: It says ‘Moved, no order,’ or ‘No address,’ I guess.
“MR. POLLARD: It looks like it says ‘No order.’ ”2
The deposition of appellant was taken October 3, 1960, and in it he testified that he did not then know where Mr. Shine was.
Mr. Shine testified on the trial as follows:
“Q Mr. Shine, please state your full name to the Court and for the record.
“A Glen Malcolm Shine.
“Q Mr. Shine, where do you live?
“A In Houston, Texas
“Q How long have you lived there?
“A I was born and raised and reared there, and this time I have lived in Houston since November of 1953.
“Q Prior to that time had you lived in Houston ?
“A Yes, sir.
“Q Immediately before going back to Houston in 1953, where had you lived ?
[483]*483“A In Madisonville.
“Q How long did you live over there in Madisonville?
“A Approximately five months.
“Q Do you have any relatives there in Madisonville?
“A Yes, sir.
“Q Who are they?
“A I have a cousin named Tommy Shine, and I have a grandfather named Sam Crabb, and all of my wife’s relatives live there. She was born and raised there, and I have relatives in the Courthouse— the sheriff is my wife’s uncle.
“Q At that time they were acquainted with you, and you were acquainted with them, of course?
“A Yes, sir.
“Q At the time you left there, did they know where you had gone?
“A Yes, sir.
“Q You went from Madisonville back to Houston?
“A Yes, sir.”
Mr. Shine and appellant served together in the Sea Bees in 1943. They had been friends since then. In 1953 while Mr. Shine and his family were visiting with appellant in Austin, Mr. Shine saw the tractor in suit at the Stelfox place of business. Appellant, who was acquainted with Mr. Stelfox, introduced Mr. Shine to him. Shortly thereafter the sale of the tractor to Mr. Shine was made, Mr. Stelfox acting for the owner, Mr. Reed. In connection with this sale Mr. Shine gave to Mr. Stel-fox a $200.00 check drawn on the First National Bank of Madisonville, Texas. This check was not paid on presentation and Mr. Stelfox in October, 1954, filed criminal charges in Austin against Mr. Shine as a consequence. A warrant of arrest promptly issued and was promptly served by the Sheriff at Madisonville on Mr. Shine. The next day, the check having been paid, Mr. Shine came to Austin to confer with the District Attorney, as to which he testified:
“Q At the time that you were talking to the District Attorney here did you or not tell him where you were living and what your address would be ?
“A Yes, sir, that I left forwarding addresses. I told him I contemplated moving to Houston, and I left forwarding addresses to my relatives in Houston. I have many relatives in Houston.”
Bearing in mind that the liability of a surety is “strictissimi juris” and that he is “favorite of the law”,3 we are firmly convinced that appellee did not exercise reasonable diligence in attempting to locate Mr. Shine before this suit was filed.
All that appellee actually did to locate Mr. Shine was send a letter addressed to him at Madisonville some five months before suit was filed. He did ask appellant six years after the suit was filed if he knew where Mr. Shine was. He did not thus inquire of him before the trial. He never did ask appellant whether he knew how to locate Mr. Shine although he knew they had been very close friends. Appellant made no inquiry of anyone in Madisonville as to his whereabouts although he knew through his agent, Mr. Stelfox, that Mr. Shine had given checks on a Madisonville Bank. He did not ask the Sheriff at Madisonville how to find Mr. Shine although the Sheriff had arrested Mr. Shine on the complaint of Mr. Stelfox, the agent of appellee. If the Sheriff could find Mr. Shine and arrest him, it would, with reason, seem that he should be able to locate him for service of civil process. Nor did [484]*484appellee make inquiry of the District Attorney in Austin who had filed the charges for Mr. Stelfox.
The Supreme Court of South Dakota in Davis v. Kressly, 78 S.D. 637, 107 N.W.2d 5, 10, in discussing a similar matter stated: “Diligence which fails to include a recent inquiry as to his whereabouts of counsel, known to have been retained by defendant in connection with the subject matter, in our opinion, can neither be characterized as reasonable nor due.”
While the District Attorney was not counsel for Mr. Shine, appellee knew or should have known that he would have means of locating Mr. Shine under the circumstances shown by this record.
It is our opinion that this record does not contain sufficient evidence to support ’the finding, and to comply with the law requiring that it be shown, that the residence of Mr. Shine could not be ascertained by the use of reasonable diligence before the institution of this suit against appellant.
The judgment of the Trial Court is reversed and this cause is remanded.