Zucht v. Jorrie , 294 S.W. 687 ( 1927 )

R. Jorrie sued appellant to recover on a promissory note for $672.40, executed by appellant to Baskin Kanter, on February 10, 1925, and due six months after date. Jorrie alleged that he was a purchaser without notice and in good faith of the note before maturity, for a valuable consideration. Appellant filed general and special demurrers, a general denial, failure of consideration, and alteration of the note. The firm of Baskin Kanter intervened in the suit, at the instance of David Kanter, who showed that the note was issued to the firm for the premiums due on two life insurance policies issued to appellant by the firm as agents of the Bankers' Life Insurance Company. Interveners prayed in case any judgment be rendered against interveners, that judgment be rendered in their favor for the amount. The cause was tried without a jury, and a judgment was rendered, denying a recovery by Jorrie on the note, on account of material alterations in it, but the court rendered judgment in favor of Jorrie for the sum of $737.32, against the firm of Baskin Kanter and David Kanter, individually, and against appellant for the sum of $740.28, in favor of Baskin Kanter. A. D. Zucht alone appealed.

The facts are that appellant executed a note for $673.40, payable to the order of Baskin Kanter. The consideration for the note was the sum of the premiums due to Baskin Kanter on two life insurance policies for $10,000 each. He swore:

"I am declining to pay this note because it is due two months later; that is to say, it shows on its face. I did get the insurance policies and that insurance for twelve months, and the amount of this note represents the first year's premium on the policies, I think 80."

If the due date of the note was changed from four to six months, as claimed by appellant, it was not done by Kanter or Jorrie, and in equity and good conscience he should pay an admitted debt, which Kanter was compelled to pay to his company.

The court did not err in permitting Kanter to intervene in the suit. The intervener, with leave of the court, had the right to enter the suit at any time before the issues were determined between the plaintiff and defendant. Smith v. Allen, 28 Tex. 497; Smalley v. Taylor, 33 Tex. 668; Pinkard v. Willis, 24 Tex. Civ. App. 69, 57 S.W. 891. It was not required that Baskin Kanter be necessary parties to enable them to intervene, but merely proper parties. They were undoubtedly proper parties. The first and second propositions are overruled.

Appellant admitted the execution of the note and that it represented the premiums on the two insurance policies; therefore a contention that there was no evidence that the note was executed for the premiums is untenable. We overrule the third proposition.

There was no evidence that any one used fraud to obtain from appellant the execution of the note, and the fourth, fifth, and sixth propositions, setting up that claim, are overruled. Appellant received full value for the amount of the note, and honesty and square dealing require its payment. Appellant admitted, "I am now declining to pay this note because it is due two months later;" or, in other words, he sought to avoid payment of a debt because alteration of the note may have rendered it invalid.

Appellant had no authority to charge dental work done for an individual partner to the partnership, in the absence of the authority of the partnership. Appellant did not plead payment in any sum. The seventh proposition is overruled.

The question of costs in the lower court was not raised in any manner in the lower court and is not referred to in any assignment of error, and cannot be raised in this court.

There is no merit in the appeal, and the judgment is affirmed.