For convenience, the parties in this case will be designated as appellant and appellee.
Appellant brought suit against appellee in the district court of Tarrant county upon two promissory notes, each dated May 1, 1932, payable on demand to the order of appellant, one being for the principal sum of $3,203.30, and the other for the principal sum of $1,407.59, each bearing interest from date at the rate of 10 per cent. per annum and each providing for the usual 10 per cent. attorneys' fees.
Appellee answered by a general demurrer, a general denial, and two separate pleas of want of consideration, the following language being used in the plea relating to the larger note:
"That the plaintiff prepared the said note and notes himself and by the use of undue influence upon the defendant, induced the defendant to sign it and them when the defendant did not know what he was being asked to sign.
"Defendant further shows to the court that the plaintiff by a series of fraudulent and designing means took advantage of his father's age, hearing, eyesight, and understanding, and did by misrepresentation induce the defendant to sign said note and those preceding it, of which it is claimed to be a renewal. And defendant solemnly swears that no consideration was given for the beginning note of the series, or any one of them."
And the following language was used in relation to the plea concerning the smaller note: "That the plaintiff prepared the said note and notes himself and induced the defendant to sign it and them at a time when the defendant was not aware of the purport of what he was being asked to sign. That said note is the last of a series of said-to-be-renewed notes, the first of which was said to have been given in May 1, 1926, and for which first note in the sum of $919.34 or for any one of them no consideration was given, but the plaintiff did by fraudulent and designing means take advantage of the defendant's hearing, eyesight, age, and understanding, and did by undue influence and misrepresentations induce the defendant to sign said note and those preceding it, of which it is claimed to be a renewal."
Following these particular allegations and pleas, appellee indulged in many allegations which are, in our opinion, purposeless and of no value. He begins paragraph five of his answer with allegations to the effect that he has learned from the oral deposition given by appellant what appellant's claims are with respect to the smaller note, and after denying such claims appellee proceeds with allegations to the effect that appellant is appellee's eldest son, born of his union with his first wife, who died and left him with six children, one being an infant two hours old; that appellee raised the children without a mother, and that appellant left home at the age of sixteen and remained away from his home for four years before returning; that at the age of *Page 789 twenty-two appellant had smallpox and appellee nursed him through the sickness for forty-one days and thereafter cared for him and boarded him for four further years, at appellee's expense, and that about the year 1917 appellee signed appellant's note to purchase mules to haul material for the aviation field at Hicks, Tex., in which undertaking appellant was prosperous and purchased several Ford touring cars, one of which cars he gave to appellee; he further alleged that the value of such car was not sufficient remuneration for the extended valuable services rendered by appellee to appellant after appellant became twenty-one years of age; that the car was worth about $605, while the value of appellant's board for six years at $15 per month was $1,080, and the value of appellee's services in nursing appellant through the siege of smallpox was not less than $400; he further alleged that during the time appellant lived with appellee, appellant took one of appellee's horses and appropriated it to his own use, such animal being valued at $65; appellee further alleged that he accepted the Ford car from appellant as a gift and at no time promised appellant to give him a note therefor, or to pay other value therefor than the services he had rendered the appellant.
Following these allegations, the appellee shows by his pleadings and averments that the notes sued upon here are notes that have been renewed several times, covering a long period of years. Appellee avers that on or about May 1, 1926, appellant framed what appellee has since learned was a note for $919.34, "and by undue influence obtained defendant's signature thereto." That appellant claims such note was for the price of the Ford car, in the sum of $605, together with 7 per cent. interest thereon from November, 1918, to May 1, 1926, and appellee "further shows to the court that the plaintiff at the time he obtained defendant's signature did not explain to him what he desired defendant to sign." Appellee then alleges that he has since learned from appellant's oral deposition that on May 1, 1930, appellant had said note renewed for an amount in the sum of $1,213.45, being 8 per cent. interest on $919.34 for four years, for which no consideration was given appellee, "and on or about that date again by undue influence obtained the signature of the defendant to the said writing, and which signature was obtained without any consideration being given therefor." He further alleges that afterwards, on May 1, 1932, the note for $1,213.45 was increased to $1,407.59, by having added to it 8 per cent. interest for two years, for which no consideration was given; and that a new writing was drawn up by appellant for the amount of $1,407.59, "and again by undue influence and without any consideration being given therefor the plaintiff obtained the signature of the defendant thereto; and the new note was made to bear 10% interest instead of 8% interest, and none of the contents of the new writing were explained to the defendant by the plaintiff, but at all times the defendant's lack of understanding, bad eyesight, and bad hearing were taken advantage of by the plaintiff; and this last writing is the instrument now sued on herein."
He further alleged that he did not realize what the alleged notes were until a short time before this suit was filed, when appellant, accompanied by his attorney, came to appellee and demanded of him that he give appellant a lien on his lands to secure the notes, and that at such time appellee found out that he "had signed some sort of paper of large liability for a car that had been given to him as a gift." He further alleges that the car having been given and delivered to him and accepted by him, he was in no way obligated at any time to execute a note therefor after more than seven years, since the car was given to him by appellant.
In the sixth paragraph of appellee's answer he alleges that the note for $3,203.30, sued on, is the last of a series of renewed notes "which the defendant has learned from the said oral deposition of the plaintiff that the said plaintiff obtained by undue influence used upon the defendant to obtain his signature thereto in the manner here and now set forth." He then alleges that the plaintiff in his oral deposition swore that such note was given for one that appellant had paid to one W. J. Rogers for the appellee, and that such note included other charges that appellant had made against appellee for other notes, goods, and merchandise. He then alleges that he at one time did owe said Rogers jointly with appellant three small notes, but that he, appellee, paid his portion of the debt when the notes fell due.
Appellee then alleges that he believes, and has reason to believe, that appellant took such notes and calculated interest on them for more than ten years at 7 per cent. interest and added this to the principal *Page 790 amount of such three notes and did, on May 1, 1926, "draw up a paper which the defendant has since learned was a note for $1937.86 and did then by fraud and undue influence obtain the signature of defendant thereto, for which signature and execution of the said alleged note the plaintiff gave to the defendant no consideration, and the defendant at that time did not know that such writing was a note and did not so learn until a short time before this suit was filed, when the plaintiff came with his lawyer and demanded of the defendant that he give him a lien on the land of the defendant for security for the payment of the alleged note. It was then that defendant learned that he had signed a note for a large liability that the plaintiff claimed of him, the defendant." He then alleged that after obtaining his signature to such note, in May, 1926, thereafter on May 1, 1930, appellant added $620.11 of interest to the above-described note, for which amount there was no consideration given by appellee, and that at such time appellant on such date "drew up a new writing, now alleged to be a note, and again by undue influence obtained the signature of the defendant thereto and without giving any consideration therefor and without informing the defendant that he was signing a note of large liability." He alleged that such sum of interest added to the face of the old note made an amount of $2,557.97, which was written in the face of the alleged new note and made to bear 8 per cent. interest, for which there was no consideration.
He further alleged that on May 1, 1932, "the plaintiff again deceived the defendant and by undue influence obtained the signature of the defendant to another alleged note and the instrument sued on herein in the sum of $3203.30, bearing 10% interest, which the defendant has since learned from the said deposition was made up of more interest in the sum of $409.26 on the alleged $2557.97 note for two years at 8% and two other notes and interest on two other notes in the sum of $49.77, which was an excessive amount for the time and rate of the said two notes; but the said two other notes of $58.80 and $127.50 dated Feb. 1, 1930, and Nov. 26, 1929, were paid by the defendant before May 1, 1932, and they could not properly form any part of the note sued on herein. That said note sued on herein for the sum of $3203.30 bearing 10% interest was obtained from the defendant without any explanation being given thereof by the plaintiff to the defendant, and the plaintiff gave no consideration for, and said note was without consideration passing to the defendant for his execution or signing of same."
Following these allegations, appellee alleges that he paid the two small notes, aggregating $186.30, with interest, by pasturing fifty head of stock for the appellant for three years prior to May 1, 1932, which pasturage was reasonably worth $900, and that he further paid appellant for other merchandise and material in permitting appellant to keep $35 that a motorist paid to appellant for appellee for injuring one of appellee's cows, and that appellant converted to his own use during the times alleged a wagon belonging to appellee, valued at $25, and that appellant during such time obtained for his own use a team of horses from appellee for three months at the reasonable value of $75. He further alleges that "during the year 1930, when plaintiff was taking advantage of defendant that he obtained much wheat and oats from the grainary of the defendant, the amount of which is unknown to the defendant, and he cannot here allege it." That during all of those days he and appellant were on good terms and he had full confidence in appellant; that at all times he would receive fair treatment at the hands of plaintiff and that no advantage would be taken of him in any way by his son, appellant, and that he fully trusted appellant in every way.
In the seventh paragraph of the answer appellee specifically alleged that previous to the year 1927 he was indebted to Mrs. Nellie Rogers, wife of W. J. Rogers, for whom the said Rogers was a trustee in certain deeds of trust to secure certain indebtedness, amounting to more than $10,000, but that the appellant did not pay any part of such indebtedness and did not receive from appellee any note for having paid any part of such indebtedness; that such indebtedness and the above-mentioned three small notes were the only notes that appellee ever owed Rogers and wife. He further alleged that the Rogers indebtedness of more than $10,000 was a lien on both farms owned by him and represented the purchase price of such farms, and that the notes were never at any time transferred to appellant, but were transferred to Mrs. Nellie Rogers by the holders, and that appellee refinanced the indebtedness by negotiating two loans from *Page 791 the Houston Land Mortgage Bank, as shown by the deed of trust records in Tarrant county; that with these loans the indebtedness due Mrs. Rogers was paid to her in March, 1927.
Appellee closes his voluminous plea with the prayer that the trial court enter judgment dismissing the cause; that he go hence without day and recover his costs, and that judgment be given that the plaintiff take nothing, and "for such other and further relief, both general and special, in law and equity, to which he may be entitled, and for which he will ever pray."
Appellant, by a proper pleading, urged a special exception to the first plea of no consideration, calling attention to the fact that the allegations were vague, indefinite, conclusions of the pleader, and did not put the plaintiff upon notice as to what the defendant asserts constituted undue influence. We think this exception, which was overruled by the trial court, should have been sustained.
The further special exception on the part of appellant, addressed to the second paragraph of said sworn plea, attacks the language as being vague, indefinite, and does not put the plaintiff upon notice of what the defendant expects to show and does not show what acts or conduct on the part of plaintiff constitute "a series of fraudulent and designing means." Appellant further excepted to such paragraph because the allegations are prejudicial and inflammatory. The exceptions are well taken and should have been sustained by the trial court instead of being overruled.
Similar special exceptions were addressed to paragraph 4 of appellee's answer, which contains his second plea of no consideration. These exceptions are well taken and should have been sustained by the trial court instead of being overruled.
Appellant specially excepted to the allegations in paragraph 5 of appellee's pleading, wherein appellee alleges that he learned from the oral deposition certain matters, the exception being that these allegations are immaterial, irrelevant, prejudicial, and constitute no proper defense to appellant's suit. The court erred in overruling such exception.
Appellant specially excepted to the second paragraph of paragraph 5 of appellee's answer, which relates to appellant being appellee's oldest son, born of his first wife, who died and left him with six children, one being an infant two hours old, which children he raised without a mother, and that afterwards appellant left home at the age of sixteen and remained away from home for four years, then came back and at the age of twenty-two had smallpox, defendant nursing him through such illness for forty-one days, and thereafter cared for him and boarded him for four years at appellee's expense, and in or about the year 1917 appellee signed appellant's note to purchase mules to haul material for the aviation field, at which employment appellant was prosperous and purchased several Ford touring cars, from which he made a gift of one in November, 1918, to appellee; that the value of the car was not sufficient remuneration for the value of the services rendered by appellee to appellant after he became twenty-one years of age; that the car was worth $605 and the value of appellant's board for six years was $1,080, and the value of appellee's services while nursing appellant through his smallpox illness was not less than $400; and that appellant during the six years mentioned took one of appellee's horses and appropriated it to his own use, which was of the value of $65.
The exceptions leveled in these allegations are that they are immaterial, irrelevant, highly prejudicial, and constitute no proper defense to plaintiff's cause of action; also that such allegations attempting to set up an offset and counterclaim to plaintiff's cause of action are barred by both the two years' statute of limitation and the four years' statute of limitation (Vernon's Ann.Civ.St. arts. 5526, 5527) and the further exception that all of the allegations, to the effect that appellant by undue influence obtained the signature of appellee, are vague, indefinite, are conclusions of the pleader, and do not point out what appellee expects to prove to constitute undue influence. These exceptions are well taken and should have been sustained instead of being overruled.
Appellant specially excepted to the allegations of paragraph 6 of appellee's answer, in which appellee alleges "that the plaintiff did by fraud and undue influence obtain the signature of the defendant" because such allegations are vague, indefinite, prejudicial, and inflammatory and do not put the plaintiff upon notice of what the defendant expects to show constituted fraud and undue influence. This exception was well taken and should *Page 792 have been sustained by the trial court instead of being overruled.
Appellant further specially excepted to the allegations in paragraph 6 of appellee's answer, in which he alleges: "That defendant further alleges that during the year 1930 when the plaintiff was taking advantage of this defendant that he obtained much wheat and oats from the grainery of the defendant, the amount of which is unknown to the defendant and he cannot here allege it. The defendant shows to the court that during these days that he and the plaintiff were on good terms and the defendant had full confidence in the plaintiff, that he, the defendant, did at all times receive fair treatment at the hands of the plaintiff, and that no advantage would be taken of him in any way by his son, the plaintiff, and defendant fully trusted him in every way."
The exception being that the allegations are highly prejudicial and inflammatory, constitute no proper defense to plaintiff's cause of action and are made solely for the purpose of prejudicing the minds of the jury against the plaintiff. The exceptions are well taken and should have been sustained by the trial court instead of being overruled.
Appellant specially excepted to the allegations found in paragraph 7 of appellee's answer, which concerned the Nellie Rogers notes, the liens securing the same, the refinancing of such liens and debts by appellee, and that appellant neither acquired any of such notes nor paid off any of such debt. The exceptions being in part that these allegations constitute no defensive matter to plaintiff's cause of action, are statements of matters entirely foreign to and not related to the matters in controversy, etc. The exceptions are well taken and should have been sustained by the trial court instead of being overruled.
Appellant pleaded a general denial and followed this by pleading that any indebtedness asserted by appellee as owing to him by appellant is and was barred by the two years' statute of limitation and the four years' statute of limitation long prior to the filing of appellee's answer in this cause.
The cause was tried to a jury. At the close of the taking of testimony, appellant requested the court to give a peremptory instruction to the jury covering the small note sued on, and likewise a peremptory instruction covering the large note sued on; both requests were rejected by the trial court and exception taken.
The cause was submitted to the jury in the form of six special issues, four being in the main charge and two being requested by appellee.
Question No. 1, in substance, is: Does the jury find there was no valuable consideration given by appellant to appellee for the execution and delivery of the $3,203.30 note? To which the jury answered, "Yes." Question No. 2 instructed the jury that if they answered question No. 1 "Yes," they need not answer the second question, which inquired what was the value, if any, of the consideration that passed. Under the instruction of the court, no answer was made to question No. 2. Question No. 3 inquired whether the jury found there was no valuable consideration given by appellant to appellee for the execution and delivery of the $1,407.59 note? To which the jury answered, "Yes." In question No. 4 the court instructed the jury that if they answered question No. 3 "Yes," they need not answer question No. 4, which inquired what was the value, if any, of the consideration that passed between appellant and appellee. At the request of appellee, the court submitted a special issue for the jury to find whether appellant gave the Ford touring car to appellee as a gift. The jury answered this question, "Yes." The court likewise submitted to the jury, at appellee's request, an issue inquiring whether appellant paid W. J. Rogers what appellee owed on the three notes, in the sum of $1,109.80. To which the jury answered, "No."
On this verdict the court rendered judgment that appellant take nothing as against appellee, and from this judgment the appeal is taken.
Appellee specially pleaded the giving of the first note and the successive renewals down to and including the notes sued upon in this cause, and specially introduced in evidence the original notes and such renewal notes as he had in his hands, and appellee testified that each time he executed a renewal note the appellant gave him the old note representing the debt, which was renewed. With reference to the first note, which was executed for the purchase price of the Ford car, appellee testified that when he signed it appellant presented him with the note, and that appellant said: *Page 793 "Here is a note I want you to sign," and appellee testified, "and I signed it." He further testified: "He told me it was for the car." In his testimony concerning the renewal of the first notes, appellee testified: "He wrote me to come in and renew these notes. * * * He just handed them to me and I signed them." Appellee testified that when the last notes were signed, he signed them for Mrs. Williams, who is appellant's stenographer; that he came in at appellant's request to renew the notes, and, after testifying that he signed them, he said: "But I never read them half the time; I don't think I had my glasses."
When appellee was asked the direct question whether or not he himself paid W. J. Rogers all he owed Rogers, his answer was: "He said I did." When asked about signing one of the renewal notes, given for a prior note growing out of the debt appellant claims he paid to Rogers for appellee, appellee explains his signing such note as follows: "He claimed that he had paid Rogers; after I went over and asked Rogers and he says I didn't owe them, I found out he was putting things in here and charging me for things when I didn't owe Rogers anything." When asked why he executed the note and the several renewals for the purchase price of the car, which he claims appellant gave him, he said: "I thought if he was sorry and ornery enough to give it to me and wait eight years and ask for a note, I would pay him for it." When asked if he knew what he was doing when he executed this note for the car, he replied, "Yes I did." Appellee admitted that W. J. Rogers was present in his home when the first two notes were executed by him, payable to appellant, one of which represented the Rogers debt, and that Rogers took part in the conversation had about the debts owing by appellee to appellant, and he credits Rogers with discussing the car note only. It was undisputed that W. J. Rogers figured up the principal and interest due on the first two notes executed by appellee, payable to appellant, and that this was done in appellee's home, when appellant asked for notes to cover the debts he then claimed appellee owed him.
On cross-examination, appellee was asked if the main thing he was squabbling about concerning the two notes in the suit was not the fact that there was too much interest charged and the fact that appellant owed him for an illness he had when appellant was a young man, and his answer was that appellant was over twenty years of age. Being pressed for an answer if those are not the main things he is kicking about, appellee answered that appellant owes him for six years' board, for three years' pasturage of forty or fifty head of his stock, and for the cow that a motorist ran over. When asked why he signed the renewal notes and did not take out what he claims appellant owes him, he replied, "Because I never intended to take it out until I found out he was crooking me. That is why I done it."
Appellee was permitted to testify to a number of things he had done for appellant which are not included in his pleadings, and on cross-examination when he was asked if he claimed appellant owed him anything on these matters, he answered: "No, I didn't charge him anything, but if he is charging me for this car, I have a right to charge him for what he has beat me out of." Appellee was then asked if he wanted to offset the car note with what he claims appellant owes him, and his answer was: "Well, if they was to give me a judgment against him for $1000.00 I would not ask him to pay it." He was then asked: "You would want it offset against the judgment he gets against you?" To which he answered: "I am showing the jury what I have done for him and the way he is treating me, not because I want to get a nickel out of him."
Appellee specifically brought out on cross-examination of appellant the fact that appellant wrote on the back of the car note words to the effect that if appellant died before appellee the note was canceled, and appellant explained that this was done because his father, appellee, did not like appellant's wife and did not want her to collect the note from him in the event appellant died first. Appellee nowhere denies this testimony, but, in substance, corroborates it.
On cross-examination, appellant was asked whether or not at the time his father signed the first note he told his father, appellee, that the account was out of date and he did not have to sign it, and appellant answered, in substance, that he did not, and that the only time appellee ever mentioned any debt being out of date was one time when he came over and said that if he were little enough to do it, he could defeat the debt, because it was out of date. This is the substance of the testimony given by appellant, and he said that for this reason *Page 794 he began to make the renewal notes every two years.
It is quite apparent from this record that there was a bona fide contention upon the part of appellant that appellee was indebted to him, and, thus contending, that appellee executed the two notes which were subsequently renewed from time to time until they grew into the notes and amounts sued upon herein. We believe that the issues in this case are controlled by the decision of the Supreme Court in the case of Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201, 205, in which the following language is used: "So, a note is supported by a sufficient consideration, if executed to secure the abandonment of a suit brought to enforce a doubtful right, or in compromise of a disputed claim made in good faith, though it ultimately appears that the claim was without merit." See, also, Walker-Smith Co. v. Pouns (Tex. Civ. App.) 256 S.W. 613.
We are of the opinion that the burden of proof being upon appellee to show a want of consideration, he did not meet the burden thus imposed upon him.
Appellee did not ask in his pleadings for any offset or counterclaim judgment against appellant and testified in so many words that he did not want any such relief, but that he was testifying to the several matters mentioned by him just to put them before the jury. No evidence was introduced sufficient to raise any issue of fraud, overreaching, or undue influence exerted as a means of obtaining appellee's signature to the first notes executed or to any renewal notes thereafter executed by him.
The findings of the jury are wholly immaterial, in the light of the undisputed record, which shows that appellant and appellee had a number of transactions, because of which appellant claimed that appellee was indebted to him, and which claims were adjusted between the parties by the execution of the first notes, which were thereafter renewed from time to time.
They thus settled their differences, and the justness of the claims cannot be inquired into, in the absence of fraud, accident, or mutual mistake; none of which issues is raised by the evidence adduced.
In the light of the record as same comes to us, we are of the opinion that the request made by appellant for a peremptory instruction covering each of the notes sued upon should have been granted by the trial court, and that it was error to refuse the same. And we conclude that the judgment of the trial court should be reversed and judgment here rendered awarding appellant recovery upon the two notes sued upon as prayed for by him.