ON RE-HEARING.
West, J.There is only one ground taken in the motion for re-hearing that will require any notice. To that, attention will be very briefly called.
Before doing so, however, we will take advantage of this occasion to make an observation or two having no reference to the present motion, in addition to what has been said in the original opinion in relation to some points that are there considered.
Lest it might be supposed that the cases of Lindsay vs. Price, 33 Texas, 282, and Frank vs. Kaigler, 36 Texas, 305, are overruled by this case, it is proper to add something to what was before stated as to the right of appellees to bring this suit.
In the brief of appellants, our attention was more than once called to these two oases, and it was urged that as the transfer of the instrument was in this case clearly partial and out of the usual course of business, and contrary to mercantile usage, that the appellees failed to show such title as would be sufficient for them to maintain their action upon the instrument in question.
We arrived at the conclusion, however, that there was a marked difference between the case at bar and the two cases above referred to, and without intending to overrule these cases, held that the appellees could under the facts of this case undoubtedly maintain this suit in the form and manner in'which it was brought. In arriving at. this result, though the subject was considered, we did not attach any great importance to the use of the word “assign” in the second section of the act of 25th January, 1840, (Hart. Digest, Art. 2521) for the reason that in Knight vs. Holliman, 6 Texas, 162, this Court had decided, after a full and able argument, in a carefully prepared opinion delivered by Justice Wheeler, that this word, as there used, was simply employed to denote the transfer of negotiable paper. No further scope or significance was given to it.
As our courts, however, constantly exercise in the same cause both legal and equitable powers, we held that this suit could be maintained, inasmuch as it had been held by high authority that such a qualified and partial transfer as the one in question, even of paper *36clearly negotiable, was not absolutely void, btit gave the transferee a claim upon the note or bill in the nature of a lien. (Byles on Bills, sixth edition, top page 233, marg. page 171-172.) This too, was really a suit to establish a rejected claim against the estate of a deceased person, and was also in effect a bill in equity, for the foreclosure of a lien on real estate secured by a deed of trust, which deed, by reason of the death of the maker, and the refusal of the administrator to act, could only be enforced through the instrumentality of the District court; for all these reasons, as well as many others that could be given, we held that under the facts of this case the appellees had the right to maintain the suit.
Smith vs. Clopton, 4 Tex., 113.
Ogden vs. Slade, 1 Tex., 13.
Spann vs. Sterns, 18 Tex., 556.
Payne vs. Benham, 16 Tex., 314.
Gibson vs. Moore, 22 Tex., 611.
The authorities are full and satisfactory to the effect, that though the agreement or written instrument may have to some extent the form of a promissory note, and may use in its body the conventional terms that ordinarily invest such instruments with the character of negotiability; yet, if by a stipulation in the body of the instrument, these elements which give it negotiability are limited and qualified, the negotiability of the instrument is destroyed.
Woods vs. North, 84 Penn. State, 407, S. C. 24, Am. Rep. 201.
Farquer vs. Fidelity Ins. Co., 18 Albany Law Journal, 330.
1 Parsons on Notes and Bills, 37, 38.
2 Parsons on Notes and Bills, 534, et seq.
It is also well settled that any memorandum or agreement of the parties, written across the face or on the back of the instrument contemporaneously with its execution, and intended and understood by them to constitute a part of the contract, is a substantive part of such note and limits and qualifies it in the same manner as if inserted in the body of the instrument itself, and, with it, constitutes a single contract.
1 Daniel Neg. Inst., 59, 60-79-149.
Carlin vs. Knealey, 12 M. and W. 139.
Warrington vs. Early, 2 Ellis and Bl. 763.
Hartley vs. Wilkinson, 4 M. and S. 25.
Benedict vs. Cowden, 49 N. Y. 402.
*37Leeds vs. Lancashire, 2 Camp. 205.
Springfield Bank vs. Merrick, 14 Mass. 322.
Barnard vs. Cushing, 4 Met. 230.
Shaw vs. Meth. Epis. Society, 8 Met. 223.
Fletcher vs. Blodgett, 16 Vt. 26.
Jones vs. Fales, 4 Mass. 245.
Johnson vs. Heagan, 23 Me. 329.
Briggs vs. Lapham, 12 Met. 475.
Smith vs. Nightengale, 2 Stark, 375.
Leading Cases on Bills and Notes, (Redfield & Bigelow) p. 8, 9, 194 et seq.
2 Parson’s Notes and Bills, 539.
The effect of such a disposition of the contents of the notes under consideration, as was provided for by the stipulations on its face and on its back, all made at the same time and constituting one transaction, was to rob it of it of the character of negotiability. Its contents were from the first apportioned and set apart by the maker and payee and transferees. It was divided into three distinct and unequal parts among three different owners. If this act did not destroy the commercial qualities of the instrument, might not the three owners of it again split it and parcel it out still further, and subdivide it into still smaller parts ?
Such an instrument, to borrow the forcible language of Lord Den-man, “carries its death-wound apparent on it.” (Goodman vs. Harvey, 4 Adol. & Ellis, 870.)
The only ground of the present motion to which it has been necessary to give attention, is that in which it is contended that the court was in error as to the facts contained in the transcript. The record has been again examined, and the opinion is found to state the facts iu accordance with the record.
Beyond this matter of a supposed mistake, or a misapprehension by the court of the facts, there is nothing in the motion that merits special attention.
No new authorities have been called to our notice, and we find nothing in it except the statement as to the supposed mistakes of the court as to the matters of fact that require consideration.
The motion is refused.
Judge Stay ton not sitting.