Home State Bank v. Cavett

518 S.W.2d 584, 1975 Tex. App. LEXIS 2343
CourtCourt of Appeals of Texas
DecidedJanuary 29, 1975
DocketNo. 12174
StatusPublished
Cited by6 cases

This text of 518 S.W.2d 584 (Home State Bank v. Cavett) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Home State Bank v. Cavett, 518 S.W.2d 584, 1975 Tex. App. LEXIS 2343 (Tex. Ct. App. 1975).

Opinion

O’QUINN, Justice.

W. R. Cavett brought this suit against Home State Bank of Marble Falls, as holder, and Thomas T. Smith, as trustee, of a deed of trust, seeking to have the deed of trust declared invalid and to remove cloud from Cavett’s title to the real property described in the deed.

The principal basis for the lawsuit was that the deed of trust “ . . .is invalid and void because the indebtedness it purported to secure did not exist as [at] the time of the execution . . . or at any time thereafter, causing a failure of consideration for said Deed of Trust.”

Trial was before the court without intervention of a jury, and the court entered judgment declaring the deed of trust void and removing cloud on the chain of title of the property described in the deed.

Home State Bank and the trustee have appealed and bring six points of error. We will overrule the points of error considered and will affirm judgment of the trial court.

The events which finally led to involvement of Cavett, the appellee, in this controversy with Home State Bank of Marble Falls, began late in December of 1968, when F. R. Gentry, who had borrowed money from the bank on prior occasions, applied to the bank for a loan of $35,000. Gentry offered, as collateral for the loan, 700 shares of stock of Dreyfus Mutual Funds, which he had on hand, and 1,000 shares of stock of Dreyfus Corporation, which Gentry represented that he had ordered and would deliver as collateral after he received the stock, which would be in about six weeks.

It appears undisputed that at that time the Dreyfus Mutual stock was worth about $16 per share, and that the Dreyfus Corporation stock was worth approximately $41 or $42 per share. Thus, as collateral, the stocks would have represented a total worth of between $52,200 and $53,200 to secure the loan of $35,000. The bank’s president, Hubert J. Schnelle, told Gentry that the bank would require more than a verbal guaranty of delivery of the Dreyfus Corporation stock, and Gentry offered “to get a letter of guarantee from the stock broker.” The bank’s loan committee subsequently approved Gentry’s application for the loan, subject to “a letter of guarantee from the broker.”

Between the time Gentry applied for the loan and the date the loan was made, which was on January 10, 1969, Gentry approached Cavett, who is Gentry’s brother-in-law, and asked Cavett to write a letter for him. Gentry dictated the letter while Cavett typed it on stationery of W. R. Cavett & Company, identified as a member of National Association of Security Dealers, Inc., and as dealer in securities and mutual funds. The letter as typed and signed is set out in full:

“December 26, 1968
Home State Bank
Marble Falls,
Texas.
Attention Mr. Hubert J. Schnelle
Gentlemen:
We guarantee delivery to you, in due course of
1,000 Shares of Dreyfus Corporation for the account of Mr. F. R. Gentry, of Council Creek.
Sincerely yours
W. R. CAVETT & COMPANY
/s/ W. R. Cavett
W. R. Cavett”

[586]*586Gentry did not indicate to Cavett the purpose for which he intended to use the letter. Cavett testified that he could only speculate as to its purpose and did not know whether its purpose was to obtain a loan, cover an overdraft, or “to pay for stock in the bank.” Cavett had been in the brokerage business a limited time, about 18 months, but in that period Cavett had handled some $235,000 worth of “stock deals” for Gentry, “all paid for except two, one cancelled, and one at the end he couldn’t pay for.” Gentry had shown Cavett a financial statement which indicated Gentry owned in excess of 1,000 shares of Dreyfus Corporation.

The bank made the first loan, for $35,000, to Gentry on January 10, 1969, and twenty-four days later renewed and enlarged the loan to $67,000, on February 3. It was not until after Gentry had defaulted on the second loan, due 30 days after February 3, that Cavett learned that the bank had made any loan to Gentry. Two bank officials, Schnelle, the president, and Walter R. Giesecke, chairman of the board and head of the loan committee, testified at the trial of this cause that they relied on the letter from Cavett in making both loans to Gentry.

The trial court filed findings of fact and conclusions of law and found contrary to the testimony of the two bank officers. The court found that, “Home State Bank did not rely on any representation by Cavett when it made loans to F. R. Gentry.”

Findings of a trial court will be sustained on appeal if there is any evidence to support them when the record shows, as in this case, that specific findings and conclusions of law were filed and a statement of facts is also brought forward. 4 McDonald, Texas Civil Practice, sec. 16.10(b), p. 29 (1971). In a non-jury case, the trial court’s findings of fact have the force and effect of a jury verdict, and the findings will not be disturbed if supported by any evidence of probative force. Guerrero v. Paredes, 470 S.W.2d 921, 923 (Tex.Civ.App. El Paso 1971, no writ).

In determining whether there is in the record evidence of probative value to support findings of fact, the appellate court must examine the evidence and view it most favorably to the findings and draw all reasonable conclusions from the evidence. In viewing the evidence and drawing the reasonable inferences, if the reviewing court concludes that a reasonable mind could reach the conclusion reached by the trial court, then there exists evidence of probative force. The appellate court will review the correctness of the legal conclusions drawn from the facts found, but may not disregard a finding and render judgment contrary to it if evidence of probative force supports the finding. 1 McDonald, supra; Tix v. Employers Casualty Company, 368 S.W.2d 105, 107 (Tex.Civ.App. Houston 1963, no writ); Coastal Plains, Inc. v. City of Fort Worth, 443 S.W.2d 414, 418 (Tex.Civ.App. Fort Worth 1969, no writ); Arnold v. Caprielian, 437 S.W.2d 620, 625 (Tex.Civ.App. Tyler 1969, writ ref. n.r.e.).

In examining the evidence, as it bears upon the finding that the bank did not rely on Cavett’s letter in making the loans to Gentry, it is at once apparent that neither Schnelle nor Giesecke, the two bank officers who made the loans, fully understood or correctly recalled the contents of Cav-ett’s letter. Schnelle believed that the shares of Dreyfus Corporation were to be delivered in six weeks “as stated in the letter,” whereas the letter simply stated “in due course,” and it was Gentry who told Schnelle that delivery would be in six weeks. Giesecke believed that Cavett had signed a security agreement and was liable on the note, a belief not reasonably drawn from the words of the letter which made no reference to a loan or any other obligation.

Both Schnelle and Giesecke testified they considered Cavett’s role that of a [587]

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Bluebook (online)
518 S.W.2d 584, 1975 Tex. App. LEXIS 2343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/home-state-bank-v-cavett-texapp-1975.