Opinion
No. 1387.
November 26, 1926. Rehearing Denied December 8, 1926.
Appeal from Nacogdoches County Court; A. L. Russell, Judge.
Suit by Woods-Taylor Co. against Allen Smith and others. From a judgment for defendants, plaintiff appeals. Reversed and rendered.
Mantooth Denman, of Lufkin, for appellant.
S. M. Adams, of Nacogdoches, for appellees.
This suit was filed on the 20th day of November, 1919, in the county court of Nacogdoches county by appellant, Woods-Taylor Company, against Allen Smith, R. A. Barker, and J. M. Miller, on a check in the sum of $379.50, drawn by Allen Smith by R. A. Barker in favor of J. N. Miller upon the First National Bank of Bryan, Tex., and by Miller indorsed and delivered to appellant, on allegations of value received, and that Barker was acting within the scope of his apparent authority in making the check. Upon a trial before the court without a jury, on its conclusions of law and fact duly filed, the court found that Barker, in making the check, was acting within the apparent scope of his authority; that the check was duly presented by appellant for payment; that payment was refused; that the check was not protested; that it had never been paid; and that "there were four terms of the county court of Nacogdoches county each year, lasting each three weeks, said terms beginning on the third Mondays in January, April, July, and November of each year; that said county court regularly convened in April, 1919, and continued three weeks, and also in July and November."
Before judgment was entered, appellant dismissed as to Barker on allegation of his insolvency; and on the court's conclusions of fact judgment was entered in favor of defendant Miller on his answer that the check had not been protested, and that suit had not been filed within the statutory time, and that no facts had been pleaded or proven by the appellant excusing the delay in filing the suit; and judgment was entered in favor of Allen Smith against appellant on the following conclusions of law:
"(1) That, in the purchase of the cattle from Miller, and in the issuance of the check for $379.50, R. A. Barker was acting in the apparent scope of the authority which Allen Smith had permitted and led the public to believe he had as his agent to purchase cattle and issue checks on him and pay therefor and to sign his name to such checks.
"(2) And further it devolved upon plaintiff to show that suit was instituted before the first term of the county court after the right of action accrued, or before the second term of the county court after the right of action accrued, by showing good cause why suit was not instituted before the first term after the right of action accrued.
"(3) Suit was not filed until November 20, 1919, after accrual of plaintiff's cause of action. It is not entitled to recover against the defendant Allen Smith."
On the court's conclusions of fact judgment should have been rendered by it in favor of appellant, Woods-Taylor Co., against defendant Allen Smith. The finding that Barker was acting within the apparent scope of his authority when he executed the check and delivered it to Miller made Smith primarily liable for the payment of the check. Gulf, C. S. F. R. Co. v. Hume Bros., 87 Tex. 211, 27 S.W. 110; San Angelo Water, Light Power Co. v. Baugh (Tex.Civ.App.) 270 S.W. 1101. Being primarily liable, as the original promisor, for the payment of the check, Allen Smith was not relieved from that liability by the failure of appellant to protest the check or to file suit thereon at the next or any succeeding term of the county court short of the bar by statutory limitation. The original promisor, or the person primarily liable on a check, is responsible to the holder of such check until barred by the four years' statute of limitation, and neither suit nor protest is required to fix the liability of such party. Elliott v. Wiggins, 16 Tex. 596; Wood v. McMeans, 23 Tex. 481; Thatcher v. Mills, 14 Tex. 14, 65 Am.Dec. 95; Beissner v. Weekes, 21 Tex. Civ. App. 14, 50 S.W. 138; Weiand's Adm'r v. State National Bank, 112 Ky. 310, 65 S.W. 617, 66 S.W. 26, 23 Ky. Law Rep. 1517, 56 L.R.A. 178; Haynes v. Wesley, 112 Ga. 668, 37 S.E. 990, 81 Am.St.Rep. 72; Rosenbaum v. Hazard, 233 Pa. 206, 82 A. 92, 38 L.R.A. (N. S.) 255, Ann.Cas. 1913A, 1291; Bradley v. Andrus (C.C.A.) 107 F. 196, 53 L.R.A. 432; Colwell v. Colwell, 92 Or. 103, 179 P. 916, 4 A.L.R. 876; Bull v. First National Bank, 123 U.S. 105, 8 S.Ct. 62, 31 L.Ed. 97; Daniel on Negotiable Instruments (4th Ed.) § 1587. This suit is not controlled by our act on negotiable instruments of 1919 (Acts 36th Leg. c. 123), for the reason that this act did not become effective until June, 1919, after the execution of the check on March 19, 1919. Spurgin v. Denton National Bank (Tex.Civ.App.) 235 S.W. 970.
Appellee Allen Smith, on oral argument, undertook to review the evidence, and show us that the court's conclusion that Barker was acting within the scope of his apparent authority was against the overwhelming weight and preponderance of the evidence, but he stated to us that he had no cross-assignment attacking that conclusion. By his argument, Smith also seeks to evade liability on the ground that the court erred in overruling his plea of privilege. This proposition was decided against him by this court in Smith v. Woods-Taylor Co. (Tex.Civ.App.) 235 S.W. 720. However, even on this point he had no cross-assignment of error. In the absence of cross-assignments, the rights of appellee Smith must be determined upon the trial court's conclusions of fact. On these facts judgment should have been in favor of appellant, Woods-Taylor Co., for the amount sued for.
It is, therefore, our order that the judgment of the trial court be reversed, and judgment here rendered in favor of appellant, Woods-Taylor Co., against appellee Allen Smith for the amount sued for.