# American Exchange Nat. Bank of Dallas v. Keeley > Court of Appeals of Texas · January 31, 1931 · 39 S.W.2d 929 URL: https://www.frixlaw.com/law-library/cases/9832612 ## Case - **Full name:** American Exchange Nat. Bank of Dallas v. Keeley. - **Court:** Court of Appeals of Texas - **Decided:** January 31, 1931 - **Citations:** 39 S.W.2d 929 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Vaughan - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9832612 ## Opinion text On Appellant’s Motion for Rehearing. In our original opinion, we did not discuss appellant’s propositions based upon the action of the trial court in overruling appellant’s objections to and permitting the following testimony of appellee, by deposition, to be introduced in evidence: “Q. Please state what comprised the securities on the fifteen thousand dollar note delivered to you? A. I got the fifteen thousand dollar note with seventeen thousand dollars worth of Aztec Oil Company bonds. The bonds were as collateral to the note to the Houston National Bank. “Q. Mr. Keeley,'state for whom, if any one, you were acting when you received the fifteen thousand dollar note, together with the securities referred to above? A. I was acting for Sam Morgan. “Q. State whether or not you accepted that note and the securities as in, full payment and settlement due you of the amount you had paid for Mr. Morgan? A. No sir, I merely acted for Sam Morgan to relieve him of that responsibility until such time as he could take care of it himself.” Appellant objected thereto on the following grounds: (a) That every question and answer therein related to an alleged transaction by plaintiff with the decedent, S. T. Morgan, and as such was inadmissible under the provisions of Article 3716, R. S. 1925; (b) same constitute a self-serving declaration by plaintiff as to an alleged transaction on behalf of decedent; and (c) same was offered for the purpose of varying * * * the unambiguous terms of the indorsement upon the note dated June 21, 1925, showing that plaintiff surrendered and canceled the alleged obligation and accepted in lieu thereof the new obligation of said principal, Aztec Oil Company, for which company decedent, Morgan, was surety, and was inadmissible for the purpose of varying or contradicting the purpose and effect of said surrender and cancellation. In its motion for rehearing, appellant assigns this omission as error. Therefore, and in view of the fact that appellant is entitled to have this court “file a conclusion of fact and law upon” said points under articles 1373 and 1875,. R. S. 1925, relating, respectively, to conclusions of fact and law and supplemental findings, said motion to that extent is granted. Evidence inhibited by article 3710, supra, is as to “any transaction with, or statement by, the testator, intestate or ward,” and unless the evidence so objected to related to a transaction with decedent, Morgan, appellant’s objection (a) was properly overruled. A careful analysis of said testimony we think demonstrates that same was not in reference to any transaction had with decedent, Morgan, in that, by other uncontradicted evidence, it was established that no transaction in reference to the facts so testified to was had by appellee with deceased, Morgan, and, further, that appellee was testifying as to his intention; in other words, that mental attitude which moved him to engage in the transaction involving the payment of $15,000 on the note for $50,000, and the • other acts related thereto, and not as to any transaction had with decedent. Dean v. Dean (Tex. Civ. App.) 214 S. W. 505 ; Potter v. Wheat, 53 Tex. 401 ; Dodson v. Watson (Tex. Civ. App.) 225 S. W. 586 ; Bradley v. Bradley’s Adm’r, 178 Ky. 239 , 198 S. W. 905 ; Omlie v. O’Toole, 16 N. D. 120 , 112 N. W. 677 ; In re Knibbs’ Estate, 108 App. Div. 134 , 96 N. Y. S. 40; Larson v. Swingley, 105 Neb. 116 , 179 N. W. 303 . We are aware • of’ the fact that there are some expressions in the following cases that prima facie appear to be in conflict with the above holding, viz.: Holland v. Mimitz, 111 Tex. 419 , 423, 433, 232 S. W. 298 , 239 S. W. 185 ; Neitch v. Hillmann, 29 Tex. Civ. App. 544 , 69 S. W. 494 ; Heath v. Moore (Tex. Civ. App.) 146 S. W. 709 ; Anderson v. Caulk (Tex. Civ. App.) 5 S.W. (2d) 816 ; Horlock v. Guardian Trust Co. (Tex. Civ. App.) 274 S. W. 204 ; Madero v. Calzado (Tex. Civ. App.) 281 S. W. 328 . However, after a careful analysis of the facts of each of these cases, we have reached the conclusion that same do not present a real conflict. As to objection (b), we think it is sufficient to say that, although in a sense said testimony was self-serving, in that, it could only be of beneficial interest to appellee, yet it was admissible on a material issue, viz. In what respect- did appellee in fact act, to make an investment for himself or to render a voluntary service to said Morgan ? The environments of this case, both as to pleadings and evidence, relieved said testimony from being self-serving, as that term, in legal parlance, is generally used. This, in the main, because said testimony was not absolutely inconsistent with the existence of facts different from those so testified to as same may be harmonized with, or used in explanation of, such different acts. State v. Lockett, 168 Mo. 480 , 68 S. W. 563, 565 ; Brosnan v. Boggs, 101 Or. 472 , 198 P. 890, 892 . As to objection (c), we do not think said testimony appears from the record to have been offered merely for the purpose of contradicting the indorsement of date June 21, 1925, upon the $50,000 note or the wording of the note for $15,000 received by appellee, nor to contradict the purpose and effect of the surrender and cancellation of the $50,000 note to the Aztec Oil Company, but as evidence *937 bearing upon and to be taken into account in determining whether or not there existed, because of said transactions, a cause of action in favor of appellee. We therefore hold that the court did not err in overruling said objections and in admitting said testimony. Said motion is in all things overruled. Overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9832612. Public record. Not legal advice.