Opinion. — A statement of this case will be found in 20 S.W. Rep., 246, where it was decided by this court on the former appeal.
The suit was brought by appellees on a lost note alleged to have been executed by H.L. Marshall, J.H. Robey and N.A. Jameson.
Appellees alleged in their petition that after the execution of the note sued on H.L. Marshall, acting for himself and purporting to act for the other defendants, took up said note and delivered to them another note, for a like amount, purporting to be made by the same parties; that the signatures of Jameson and Robey to the renewal note were believed at the time by the plaintiffs to be genuine, but that in fact they were forgeries; that H.L. Marshall was totally insolvent, a fugitive from justice, and his whereabouts unknown to the plaintiffs, and that they were unable to produce the note sued on, and notice was given to the defendants to produce the same, or secondary evidence of its contents would be offered by the plaintiffs.
At the time of the transaction in question the testimony shows that the plaintiffs were engaged in the banking business under the firm name of McCord, Cameron Co.
W.N. Cameron, one of the plaintiffs, testified as follows: "I was the general manager of said firm and the only one authorized to transact the general business, and as such manager it was my business to receive all notes taken by the firm and to enter same on the books of said bank or see that same was so entered. On or about the 19th day of August, 1890, I accepted a note for plaintiffs, purporting to be signed by H.L. Marshall, N.A. Jameson and J.H. Robey. The note bore date Aug. 19, 1890, due and payable sixty days after date thereof, to the order of McCord, Cameron Co., for the sum of two hundred and twenty dollars, with interest from maturity at the rate of 12 per cent per annum, and a reasonable attorney's fee if placed in the hands of an attorney for collection. This note was never paid. It was taken up by a renewal note for the same amount, purporting to be signed by the same parties. I cannot say what became of the note. I haven't got it. *Page 215 The note nor none of the renewal notes have ever been paid by Marshall or any one else. H.L. Marshall left Coleman County in August, 1891, to the best of my recollection. At that time he had the reputation of being insolvent. Soon after he left I had occasion to have his property examined, and found that it was all mortgaged. I heard that H.L. Marshall had left the country and that he had been guilty of forgeries."
This is all of the testimony in the record tending to excuse the plaintiffs for not producing the note sued on.
Appellant objected to the plaintiffs proving by Cameron and by appellant, Jameson, the contents and execution of the note sued on, among other reasons, because the plaintiffs had not shown sufficient diligence to procure the note itself. This objection was overruled, and the testimony admitted in evidence.
Upon the trial, and presumably before this testimony was offered, the plaintiffs dismissed their suit as against the defendant Marshall. Therefore the case does not come within the rule which excuses a party from producing an instrument alleged and proved to be in the possession of the opposite party, who has been given notice to produce the same. Unless the testimony shows that the plaintiffs had exercised due diligence to procure the note and failed to do so, they were not entitled to prove its contents and execution; and, in our opinion, the evidence fails to meet the burden resting upon them in this respect. Cameron's testimony indicates that he delivered the note to H.L. Marshall, and he states that Marshall left Coleman County in August, 1891, and that he had heard that he had been guilty of forgeries. He does not show that he did not know and had not known for months or years where Marshall resided. In fact, for aught that appears in the testimony, Marshall may have been residing in Coleman County at the time the case was tried.
The other assignments of error are not well taken.
As held on the former appeal, the agreement to extend the time of payment having been procured by fraud, it was not binding upon appellees, and therefore appellant, though a surety, was not released. There was no conflict in the evidence on this issue, and the fraud was clearly shown. The consideration for the extension was the payment of interest in advance, and as the interest was due and Marshall insolvent when the fraud was discovered, it was not necessary to offer to refund the interest so paid. Under the circumstances, considering the evidence that had been admitted, it was proper to direct a verdict for the plaintiffs. Nor did the court err in refusing to have the jury polled. Having peremptorily directed the jury to return a particular verdict, it was immaterial whether they assented thereto or not. When the court has the right to direct a jury to return a particular verdict, the verdict is a mere matter of form to serve as the basis of a judgment.
The defendants were not sued as sureties, and the testimony did not indicate that the instrument sued on was signed by either of them in *Page 216 that capacity. Therefore, the plaintiffs had the right to dismiss as to Marshall without proving that the latter was insolvent, out of the State, or that his whereabouts were unknown. Ritter v. Hamilton, 4 Tex. 325; Ennis v. Crump, 6 Tex. 86 [6 Tex. 86]; Lewis v. Riggs, 9 Tex. 164; Head v. Building Loan Ass'n, 25 S.W. Rep., 810.
For the reason above stated, the judgment will be reversed and the cause remanded.
Reversed and remanded.