Butler v. Price (138 S.W.2d 301, 1940)

-.MONTEITH, Chief Justice.

This is an appeal from a judgment of the county court of Houston County in an action brought by appellant, C. W. Butler, Jr.s against appellee/ Perry A. Price, on a note for'the sum of $490.85, executed by appellee and payable to appellant on demand.

'Appellee answered by general demurrer, 'a general denial, and pled specially that prior to the execution of said note he was indebted to appellant on an open account which was barred by limitation; thát appellant, who was a member of the Texas Prison Board, intimated to him that if he would execute and deliver to him a note for said barred debt he would secure a position for him in the penitentiary system as a convict guard.

Based on these allegations appellee pled (1) that said note was without consideration; (2) that the consideration therefor had wholly failed; (3) that said consideration was contrary to public policy and void; and (4) that said note did not speak the entire agreement between the parties, in that it was understood between him and appellant that said note would be paid out of the proceeds of his earnings as such convict guard.

The jury, in answer to three special issues submitted, found in effect: (1) That prior to the execution of said note . appellant had made representations to ap-pellee that he would assist him in securing a job with the Texas Penitentiary system; (2) that such representations were made for the purpose of inducing appellee to execute said note; and (3) that áppellee believed said representations to be true and relied upon them at the time he executed the note.

The court also submitted the following special issue No. 4, which the jury failed to answer: “Do you find from a preponderance of the evidence that defendant, Perry A.,Price, executed and delivered the note in ■ controversy on .the condition that the plaintiff, Dr.' C. W. Butler, Jr., would assist him in.securing-a job with the penitentiary system?”

Based-on the answers to said three issues the trial court rendered judgment in favor of defendant. , .

At the conclusion of the evidence by both sides, appellee filed his admission, under district and county court rule No. 31, to the effect that he had executed the note sued on and that appellant had a good cause of action as set forth in his petition except in' so far as it might be defeated by the facts of his answer. Under said admission he was accorded the right to open and close in the argument.

Under the established law of this state this admission constitutes an abandonment of all defensive matter, except that in the nature of confession and avoidance, including an abandonment of the plea that the note sued on was without consideration. National Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691; Rector v. Evans, Tex.Com.App., 6 S.W.2d 105; Ferguson v. American Bank & Trust Co., Tex.Civ.App., 13 S.W.2d 459, writ refused.

Under this record the controlling question to be determined in this appeal is whether the issues submitted to the jury and the judgment rendered thereon by the trial court are supported by the pleadings of appellee.

In his original answer appellee alleged that appellant: “approached defendant and intimated to him (amounting to a statement) that if he, defendant, would execute and deliver to him, plaintiff, a promissory note for said barred debt, due on demand, he, plaintiff, would secure for defendant a position in the penitentiary system of Texas as a convict guard. * * * That defendant would not have executed said note except for the promises and representations made to him by plaintiff, and defendant further says that plaintiff has wholly failed to carry out his promises and has failed to even attempt to do so.”

The court submitted the following issue No. 1: “Do you find from a preponderance of the evidence that prior to the time that defendant executed the note involved in this suit the plaintiff, Dr. C. W. Butler, Jr., made representations to the defendant, Perry A. Price, that he would assist him m securing