Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-07-03

licve from the evidence that the dcfcnd-
ant aSsented TO such USE OF the note
sued upon you vii lind for the plainllu,
you are further instructed mat
though you may believe from tue cNl-
dencc that the note sued OH was cNecu-
ted in pursuance Of the written agree
ment as alleged az You should so md;
yet unless yoa further believe from the
evidence that the llaintitl hudnouce q
said agreement at the time or before u
took the note you should ind Tor the
plaintiff" and also at request OF an.
pellant gave the following nuulhoh"i
charge:
"1he Jury are instructed that plain
till is presumed 10 be an innocent holt
er OF the note sued upon for 4 valuable
consideration without notice OF any de-
fences tl..reio and the burden is upon
defendant TO establish his defence therr,
To hy prepunderunce of evidence, anu
uI,.ss he has done 50 plainhif is enti-
tied TO verdict for the amount 81 the
note and interest thereon ut l. per cent
per anuum from It, date aud 10 per cent
In addition ON both the prlnclnal ana
interest us attorneys fees. Ihe YER
dict finding that appellee did not consent
compliance with ihe conditions upon
which IL was executed Is sustained ny
the evidence. The jury returned YER
diet IN favor of appellee upon when
Judgment was rendered by the court
from which this appeal is taken
OPINION.
That the validity of the note gwen by
nuppllce, absolute In form though II ~
rs between the original parties l9Srvln
would be dependent upon a cohphanso
an the pnrt Of the other signerH 10 inc
written agreement with their part Thereon
we tbiul, there can be but little question
smith Is. the Traders National bank;
"A Texas, oil; Loving vs.. lllcksoh' ~
Texas 20; Rogers vs., broaunnN' -
Texas, OBS; Daniel on Negotiable lnstr1-
ments. 4th edition. GSa; ! Randolph
"n Commercial papcr, 22I-2Sl Benton
vs. Martin. ~ New York. DO hen,
VILE Savings bank vs.. Botnman, ~
Illinois. 200: Mcstmlu W, krumeuedc,
30 Minnesota, BIZ, Merchants ENchange
hank vs.. Luckow, - Minnesota, Dr.
Mcfarland Va. Sykes. 81 Connecticut
~. Some of these eases even go 10
the extent of holding that IL can be shown
by oral evidence that a promlSsory note
absolute in form was delivered 10 the
payce upon the verbal agreement thht
II was not to take effect untu the nap
pening of named condition, ana IN
such case 1t would not be binding ms
between the parties until the condition
in complied with, hut 1t is not necessary
In this ease for us to 20 this far This
note and the written agreement set forth
In the conclusions of fact were executed
as parts of the same transaction AMI
should he construed together as forming
one contract in u controversy between
parties chargcable with nOtite thereof
and II IL therefore not necessary To re-
sort To parol evidence TO show the CON
ditions upon which the note was given,
Appellant seemingly questions the cor
RICHNESS of these conclusions upon the
authority Of that line Of decisions which
halls that MlpTN naWnIiunln il nR4
livcrcd with the understanding that 1t is
20 take effect OF once IN consideration of
an agreement ON the part of the payee
10 render certain services or deliver Ger
tain goods in future. u failure on the part
Of the pAvce TO comply with his mart of
the agreement after the note has passed
into the hands of a third party for value
before maturity, will constitute no de
fence, even though the holder may have
had notice that the consideration was
u promise TO be performed IN future at
the time he purchased IT, | Daniels on
Negotiable Instruments, 9TH edition, 400;
State National bank vs.. Cnson. 30
Louisiana, Ann, SGT; Patton vs.. Gleason.
LOG Muss., I;D; l Randolph on CONNER
cial Paper, l.; Davis VS.. MeCreudy, Ii
y. V, 30. We do not understand these
eases TO, In any way conflict with the
views above expressed In them the
notes were delivered with the under
standing that they Wore TO tnlSe effect
Immediately, the maker relying upon the
agreement of the payce 10 comply with
his part of the agreement, but In this the
note was not TO take effect at all unless
the condition was complied with In
presenting this branch of the case 10
the jury we think the charge of the court
was quite as liberal to the appellant
as the law would authorize.
We are thus brought To the most inn
portnni question in the case which is,
uuutl1ynf
the condition upon which the note was
executed at the time II acquired the
sames 1t TX not denied that BOnz who
was president of appellant aud who acted
for II IN the transaction by which 1t
acquired this note, had full notice at
that time OF the agreement under which
II was executed and that some Of the
parties thereto had not complied there
with, but II is claimed that appellant
should not be charged with the notice
that Bonz had because when he acquir-
ed IL he was Il stakeholder and drcc-
tor in the Investment company aud one
OF the parties to the agreement ami WIS
THEREFORE Interested adversely TO his princi-
pal. The authorities upon questions kin
dred to this are so conflicting il would
be n useless task TO undertake to recon
Gle them ana attempt TO deduce n rule
that would have anything like general
application. Meachem ON Agency 72D
aud note; Spelling on PriynIe Corpora
tions, 1853 and note: Wade on Notice,
SO, $50; | Morse ON Banks and Bank
ing, 1O6-lO0. IL is generally conct4led
that where the agent has a personal
interest adverse TO that OF his principal
which would tend TO prevent him from
communicating his knowledge, third
party having notice OF this adverse inter
rest could not hold the principal buund
10y such notice But where the agent acts
for the principal in the particular trans
action and the third party does not know
OF such adverse interest. and one Of them
must suffer through his fraud il would
seem upon principle that the one who
employed such an agent should bear the
loss rather than the other. ] Morse ON
Banks and Banking supra. But ia this
case did Boaz have such adverse inter
est to the bank as should prevent it
from being charged with notice TO him?
We attach much Importance to the fact
that BOaz acted for the banl, ia this
transaction and II is of his acts that
il seeks TO avail itself He had no per
sonal interest 10 be subserved by injur-
ing the bank other than such as be hnd
as stakeholder and director la the
Texas Investment company and this in
terest seems to have been fully offset by
the intersat he pnss,isHcd as president
stockholder and director Ia the bank for
which he was acting. The case then
,,...s tIts. tu fufuraf H.. lurt. H.