On Motion for Rehearing and for Additional Findings. In response to appellant's request for additional findings, we will add to the statements made in the majority opinions herein the following:
(1) As to the sale of the one-half interest in the building by the appellant bank, pending the suit on these notes: The bank executed a bond for title, dated "the _____ day of August, 1921," whereby it bound itself for the consideration of $277,000, to convey the property to ______, "on or before the _____ day of ______, 1921." The evidence shows that negotiations which resulted in the execution of this bond were conducted by one Reid, who represented the bank and Frank Kell. The testimony of all the witnesses who testified about the matter at all is that the *Page 1020 bank was to get $277,000 for the one-half interest in the building, as provided in the bond. There is in the record an agreement between Frank Kell, as party of the first part and a number of other persons, as parties of the second part, also dated "August ______, 1921," whereby the said other parties agreed with Kell —
"to form a syndicate composed of all the parties hereto for the purchase of the furniture and fixtures in that part of the building on lot No. 1, block No. 175, in Wichita Falls, Tex., occupied by the American National Bank of Wichita Falls, as well as an undivided one-half in and to the lot and building thereon situated, at and for the consideration of $400,000."
This agreement contains these further provisions:
"Parties of the second part hereto do hereby authorize and empower party of the first part to purchase said property above described from the City National Bank of Commerce of Wichita Falls, Tex., on such terms as may seem best to the said party of the first part, as well as to purchase from the American National Bank of Wichita Falls its stock in the American Investment Company, a corporation, on such terms and conditions as to the party of the first part seem best."
The agreement then provides that each party is to pay the amount thereby subscribed, and that such amount —
"shall constitute the subscription of the parties so signing and shall be his pro rata of the said $400,000 which shall be the purchase price of the property above described."
This agreement was not signed by the bank, and Kell testified that it was completed after he had secured the bond for title from the bank. These facts do not support appellant's insistent contention that the bank sold the property for $400,000; on the contrary, they sustain the finding that we originally made that the bank agreed to sell the property for $277,000.
(2) The appellant also requests us to make a finding as to what the evidence shows as to whether the notes sued on were acquired by the bank before maturity. This case was tried on the following written agreement, signed by the attorneys for the respective parties, and introduced in evidence:
"It is agreed between the City National Bank of Commerce, plaintiff, and Jos. Long, Jr., defendant, that the City National Bank of Commerce became the holder of the two promissory notes herein sued upon and described in plaintiff's petition before either of said notes were overdue and without notice that either of said notes had been previously dishonored; that the plaintiff acquired said notes in good faith, and the same were transferred as collateral security for four notes previously executed to the National Bank of Commerce, of which the plaintiff is the successor, dated May 1, 1920, signed by F. L. McCoy, Rhea S. Nixon, and Wm. N. Bonner, three being in the sum of $100,000 each, and one in the sum of $51,119.08, and an extension of time and forebearance from suit was given the original makers of the notes last above described as consideration for the transfer of the notes here in question as collateral security; that, at the time the notes herein sued upon were negotiated to the plaintiff, it had no notice of any infirmity in the instruments or defects of title of the persons negotiating the same, unless the instruments themselves gave notice of such infirmity."
This agreement was not attacked in any way in the lower court, and was not called in question in this court until the filing of the motion for rehearing. Appellant now quotes some extracts from testimony of the witness Langford, which he contends show that the notes were not acquired until after their maturity, and asks us to make a finding thereon. We doubt whether the evidence referred to necessarily has the meaning that appellant attaches to it. However that may be, we think it is now too late to call in question the agreement on which the case was tried, and we decline to go through the record for the purpose of making a finding as to whether it appears from the other evidence that the agreement does not state the truth.
Subject to the foregoing statement, the motion for additional findings is overruled. We also overrule the motion for rehearing.