#### PEURIFOY v. JONES.

No. 988.

Court of Civil Appeals of Texas. Eastland.

April 29, 1932.

Stinson, Hair, Brooks & Duke, of Abilene, for appellant.

F. E. Smith, of Abilene, for appellee.

FUNDERBURK, J.

W. M. Jones, as part consideration for the conveyance of a tract of land, executed and delivered to S. W. Peurifoy five notes for $540 each, due and payable, the first one on May 1, 1931, anh one each year thereafter until all were paid. On or about January 10, 1931, thereafter, Peurifoy, the payee, notified Jones, the maker of said notes, that same had been sold and delivered by him to one Ed Reynolds, and that Peurifoy had no further interest in them. On or about the 17th day of January, 1931, Jones paid Reynolds $750 in cash, canceled a debt due by Reynolds to him of $47, and agreed to give Reynolds a deed to a lot in Coleman county in consideration of the transfer and delivery of said notes from Reynolds to Jones. The notes, when delivered by Reynolds to Jones, contained no indorsement by the payee Peurifoy. After Reynolds had delivered the notes to Jones, he got them back, ostensibly for the purpose of preparing a release. Reynolds turned them over to Peurifoy, and Jones, being informed that Peurifoy and Reynolds were offering the notes for sale, and the notes upon their face not being due, he filed this suit, seeking to compel delivery to him of the notes; to enjoin the sale thereof, and to have the lien evidenced thereby, released. Upon a jury trial a special verdict was rendered for the plaintiff, finding substantially as above stated, and from a judgment thereon for plaintiff the defendant Peurifoy has appealed.

The transaction by which the plaintiff took possession of the notes, after paying Reynolds $750 in cash, and agreeing to cancel the $47 debt from Reynolds to him and agreeing to convey the lot in Coleman county, was designated by the plaintiff as a purchase of the notes. All of appellant’s assignments of error constitute a complaint as to the action of the court in refusing to give a peremptory instruction in his favor on the ground that, the notes showing no indorsement by Peurifoy, the payee, no title thereto passed to the plaintiff, and no estoppel could be predicated upon the representations made by Peurifoy to the effect(that Reynolds was the owner of the notes, since the lack of in-dorsement constituted notice to plaintiff of the defect in Reynolds’ title to them.

 The mere possession by Reynolds of the notes, with no indorsement thereof by Peurifoy, the payee, did not constitute prima facie evidence of ownership by Reynolds. Pinkerton v. Kempner (Tex. Civ. App.) 8 . S.W.(2d) 555; Hubbard v. St. John (Tex. Civ. App.) 8 S.W.(2d) 556. If, therefore, the notes in question had been the obligation of some one other than that of the plaintiff, and the question had been simply whether plaintiff acquired title to the notes, it is certainly true he would not have acquired legal title by the transaction in question. But the le^al effect of the transaction in question was, not merely a transfer ,of title to the notes, but was a payment of the notes. Undoubtedly, had the notes been in the possession of Peurifoy and he had agreed with plaintiff to surrender all his rights therein for a consideration deemed *950as valuable as tbe notes, and satisfactory ■to bim, tbe delivery of tbe notes to plaintiff in pursuance of sucb a transaction would bave constituted payment, and it would bave been immaterial that there was no indorsement on tbe notes or other evideneé of such payment.

Tbe only question then is tbe effect of Peurifoy’s representations that be no longer bad any interest in the notes, and that Reynolds was the owner thereof. If sucb representations were true, then plaintiff bad precisely the same right to deal with Reynolds, and by special agreement be could pay tbe notes to Reynolds in cash or otherwise. In sucb case there would be no more necessity for tbe notes to be indorsed than bad the plaintiff dealt directly with tbe original payee, Peurifoy. We cannot escape tbe conclusion that such is tbe legal effect of tbe transaction which tbe jury found took place between the. parties.

Appellant insists that Reynolds bad no title to tbe notes, and this position made it necessary for tbe plaintiff to establish his plea of estoppel in order to recover. Tbe jury found that Peurifoy did represent to plaintiff that be bad no interest in the notes, and that they were 'held by Reynolds. This part of tbe verdict was in response to the plea of estoppel, and, in tbe absence of special objection to tbe manner of submission, must be held to support a judgment for tbe plaintiff upon bis plea of estoppel.

We therefore conclude that tbe trial court did not err in refusing to give a peremptory instruction in favor of tbe appellant, for which reason tbe judgment of tbe court below should .be affirmed, which is accordingly so ordered.