The opinion
On Motion of Appellee- for a Rehearing.
The statement in the opinion disposing of the appeal that appellant assigned notes specified to the Connecticut General Life Insurance Company is erroneous, so far as it applied to the note for $2,065 described as payable in installments. That note was for interest stipulated for in the contract covering the loan represented by the $9,000 note and the five notes for $500 each. It was not transferred to said insurance company, but, it seems, was assigned to the United States Bond & Mortgage Company; and it appeared in the evidence that $390 of the $1,125 interest paid by appellee January 1, 1925, and $390 of the $1,090 interest paid by him January 1, 1926, was on account of said $2,065 note. It follows that it appeared that only $1,435 of the interest payments of $1,125 and $1,090, aggregating $2,215; was received by appellant as the agent of the insurance company, and that it received the $780 remaining of said payments either on its own account or as the agent of said bond and mortgage company.
. In - its answer appellant alleged that it “never (quoting) received any payment of interest as the owner, of any of the notes described in the plaintiff’s petition,” and, as we construe it, the undisputed evidence heard at the trial supported the allegation. In that state of the record, we do not think this court erred when it held that it appeared appellant was not liable for the recovery, or any part of it, sought by appellee against it, unless it ought to be said it was estopped to deny such liability. That it was not es-topped to make such denial so far as the amount of the payments to the insurance company were concerned, we think clearly appeared in the fact that the transfer of the $9,000 notes and the $500 notes to it were of record and appellee was bound to take notice of the fact that it, and not appellant, owned them.
Whether appellant was estopped to deny that the $780 paid to it on account of the $2,065 note was paid to' it as the agent of the bond and mortgage company is another question. There was no evidence showing, or tending in the least to show, that at the time appellee made the payments of $1,125 and $1,090, respectively, he knew appellant had assigned the $2,065 note to the bond and mortgage company, or any one else, or had any reason whatever to believe that appellant was not then the owner of that note. The fact, and only fact as we construe the evidence heard by the court, which could plausibly be claimed to support the charge of estoppel, is that appellant by an instrument in writing dated January 18, 1927, acknowledged payment by appellee in full of the $2,065 note, and undertook to release a lien on lands created by appellee in 1921 to secure the payment of the note. It will be noted the release was executed more than a year after January 1, 1926, the date of the last interest payment of $1,090, and therefore that recitals therein could not have influenced appellee to make either that payment or the one of $1,125 made January 1, 1925. 17 Tex. Jur. 137.
The motion is overruled.