Appellants in their motion for rehearing strenuously deny that in the suit instituted by the Houston Land and Trust Company upon the note in controversy they questioned the ownership or title of the trust company thereto. They also deny that the court below gave judgment against the trust company in that suit upon the ground that it did not own the note.
The answer of appellants in that suit was as follows: "And for further answer herein, these defendants say that plaintiff ought not to have and maintain this suit against them, because they say that plaintiff, as is alleged by it, and which is here admitted, is a private corporation, organized and incorporated under the laws of the State of Texas; and it is further admitted that it did acquire for value, as is alleged, said note in the course of trade and before the maturity thereof, from the payee thereof, but these defendants charge that plaintiff acquired said note on the 31st day of July, 1890, from C. Lombardi, the payee thereof, by paying him therefor in cash at said time a sum much less than the principal of said note with its accrued interest at *Page 320 maturity; that is to say, it paid the said Lombardi for said note on the date last aforesaid a sum very much less than the principal of said note and the interest to accrue thereon up to its maturity would aggregate, and that such act on the part of plaintiff is in contravention of law, and especially inhibited to it, and in no manner allowed to it under its charter; and of this these defendants put themselves upon the country."
This answer, in our former opinion, we construed as a denial of the power of said corporation, by reason of the facts alleged, to acquire the title to, or become the legal owner of, the note. Such we still think to be the proper construction to be placed upon the pleading.
The court below, in rendering judgment in that case, after finding the facts to be substantially as set forth in the foregoing answer, filed the following conclusions of law: "1. That the plaintiff can not do any banking or discount business. 2. That the sale of the note herein sued on to the plaintiff by C. Lombardi was a `discount' within the meaning of the law, and ultra vires. 3. I therefore conclude that the plaintiff can not maintain this action, and that the defendants should have judgment."
From these findings we understand the court below to have concluded that it was beyond the power of the corporation plaintiff therein to acquire the ownership of the note from Lombardi by discounting it as aforesaid, and therefore gave judgment against it in favor of those pleading this want of title.
We still adhere to our former opinion, in holding that if Lombardi saw proper to repay the money to this corporation and reclaim the note for which it was given, whether before or after judgment against him, he had the right to do so, and maintain suit thereon against those primarily liable for its payment.
We have, in view of the motion for rehearing, deemed it proper to say this much in explanation of what is said in our former opinion as to the former adjudication having been based upon the lack of ownership on the part of the Houston Land and Trust Company of the note in question.
The motion for rehearing will be overruled.
Motion overruled. *Page 321