Citations
- 37 S.W.2d 735
Full opinion text
CRITZ, J.
This suit was begun in the district court of Dallas county by North Texas National Bank against D. G. Thompson, R. K. Erwin, I. M. Williams, Mrs. Ella K. Gibson, and W. J. Rutledge, trustee in bankruptcy of Texas Mortgage Company, a corporation. Later Rutledge, trustee, was dismissed. The ease was tried with a jury, but at the conclusion of the evidence the court peremptorily instructed a verdict in favor of D. G. Thompson, Mrs. Ella K. Gibson, and I. M. Williams. The court also peremptorily instructed a verdict in favor of the bank against R. K. Erwin. The jury returned a verdict as instructed, and judgment was entered accordingly. The reason for the instructed verdict against Erwin does not concern us, as he did not appeal therefrom. The North Texas National Bank appealed to the Court of Civil Appeals at Dallas, which court originally reversed the judgment of the district court in favor of Thompson, Mrs. Gibson, and Williams, and rendered judgment against them for the bank, but on rehearing this judgment was changed so as to remand the cause for a new trial. 23 S.W.(2d) 494. The case is in the Supreme Court on writ of error granted on application of Thompson, Mrs. Gibson, and Williams.
It appears from the record that on July 29, 1921, T. J. Cole, I. M. Williams, D. G. Thompson, R. K. Erwin, and Mrs. Ella K. Gibson, all stockholders and directors of Texas Mortgage Company, executed and delivered to the Southwest National Bank of Dallas, Tex., the following instrument of guaranty.
“Limited Guaranty
“For the sum of One Dollar ($1.00) and other valuable consideration, I, we, or either of us, jointly and severally, guarantee the payment and agree and promise to pay at Dallas, Texas, to the Southwest National Bank of Dallas, its successor, successors or assign, at maturity or at any time thereafter as demanded by it, all notes, discounts, overdrafts and any and all indebtedness or obligation. whether joint or several, or both, or primary or secondary, contract of tort, for which The Texas Mortgage Company of Texas, Dallas, Texas, is, or are, now, or hereafter may become, liable or indebted to the Southwest National Bank of Dallas, its successor, successors or assign, provided, however, that my or our liability hereunder shall not exceed the sum of Twenty Thousand Dollars ($20,000.00), and the payment of said sum of Twenty 'Thousand Dollars ($20,000.00) under this contract to said Southwest National Bank of Dallas, its successor, successors or assign, by. the subscriber or subscribers hereto, such payment to be applied to the indebtedness of the principal debtor as may be determined by the Southwest National Bank of Dallas, its successor, successors or assign, shall satisfy and discharge the obligation of this instrument.
“I, we, and each of us hereby waive notice of acceptance of this guaranty and all. other notices in connection herewith, or the indebtedness or obligation guaranteed thereby and waive diligence, presentment, notice, protest and suit on the part of the bank, its successor, successors or assign, in the collection of any indebtedness or obligation hereby guaranteed. This guaranty is a continuing one and shall continue to apply without regard to the form or amount of the indebtedness or obligation guaranteed, which the bank, its sue-cessor, successors or assign, may create, renew, extend or alter, in whole or in part, without notice to the undersigned from time to time as it may elect without affecting the obligation of this guaranty, and it is hereby expressly agreed that the bank, its successor, successors or assign, may surrender, release, exchange or alter any collateral or other security held by it for the claims hereby guaranteed, either in whole or in part, without affecting the obligation or liability of the undersigned on this guaranty, and this guaranty shall be and continue effective notwithstanding any legal disability of the principal debtor to incur the indebtedness or obligation, in whole or in part.
“This instrument shall bind me, us, and each of us, severally and jointly, until the Southwest National Bank of Dallas, its successor, successors or assign, shall have received notice in writing, that the subscriber hereto giving such notice elects to be no longer bound by this guaranty, after which time this instrument shall bind the subscriber hereto giving such written notice