Collins v. Panhandle National Bank

11 S.W. 1053, 75 Tex. 254, 1889 Tex. LEXIS 1071

• Court: Court of Appeals of Texas
• Decided: May 21, 1889
• Docket: No. 6077
• Status: Published

Opinion

COLLARD, Judge.

This suit was brought by the appellee the Panhandle National Bank against the appellants O. B. Collins and C. E. Odem on a promissory note for 83090, interest, and attorney fees, as stipulated in the note executed by appellants to appellee, or order, June the 29th, 1885, and due August 29, 1885. The note was endorsed by John G. James, president of the bank, to the. Louisville Banking Company, or order, and payment guaranteed at the office of the endorsee in Louisville, Kentucky. It was also endorsed by the Louisville Banking Company to John G. James, president, cashier, or order, for collection for account of the Louisville Banking Company. These endorsements were erased by stroke of a pen run through them. The note was protested for non-payment at Wichita Falls, in Wichita County, on the 31st day of August, 1885, at the request of A. S. James, cashier of the Panhandle National Bank, and notices of protest given to the makers and the Louisville Banking Company.

Plaintiff, among other necessary allegations, alleged that it was the legal owner and holder of the note.

On the trial when plaintiff offered the note in evidence it was objected to by defendants, because there was a variance between it and the allegations of the petition. No exception was reserved to the ruling admitting the note in evidence.

It is insisted by appellants that the endorsements on the note, though erased, showed that plaintiff was not the legal owner and holder of the note, and therefore there was a variance in the allegations and proof, and that no judgment could, under the proof, be rendered for plaintiff.

The Supreme Court will not revise the action of the trial court in admitting or excluding evidence unless excepted to at the time. We can not therefore consider the question as to the admissibility of the note., It must follow, then, that the note having been admitted with the endorsements erased, and it being in possession of the payee, the plaintiff, no legal objection could be urged against plaintiff’s right to judgment. Ho variance between the allegations and the proof appears. In this view of the case neither of the assignments of error are well taken. If, however, we were called on to consider the assignments of error we would be compelled to decide against them. Plaintiff was the original payee of the note and in possession. The rule is, that when the payee of a note makes a special endorsement of it, and is afterwards found in possession of it, he has the right to strike out his own and other subsequent endorsements and bring suit in his own name. Texas L. & C. Co. v. Carroll, 63 Texas, 52, 53; Dan. on Neg. Inst., sec. 1198.

The endorsements on the note were stricken out, as plaintiff had the right to do, being in possession; plaintiff could then sue as the legal owner and holder.

There was no error in the rulings of the court, and the judgment ought to be affirmed.

Affirmed.

Adopted May 21, 1889.