N. E. GUTHRIE, Jr., Petitioner, v. NATIONAL HOMES CORPORATION, Respondent, 394 S.W.2d 494

POPE, Justice. National Homes Corporation sued N. E. Guthrie, Jr. and John D. Crow and recovered judgment upon a jury verdict against both for $780.00, owing upon what it alleged was a negotiable promissory note. The- Court of Civil Appeals affirmed. 387 S.W.2d 158. Guthrie alone has appealed and he has done so without bringing forward a statement of facts.

He urges that he is not liable on a negotiable instrument on which his name nowhere appears, and also that the note contains a variance between the figures and the unambiguous written words that state the amount payable, in which case the courts below should have given controlling effect to the written words. It is our opinion that the instrument sued upon was not a negotiable instrument, and Guthrie is bound by the jury finding that he ratified it. We sustain Guthrie’s contention that the unambiguous written words control the figures. The instrument sued upon is as follows: “$5780.00 Electra Texas H 1962 “Ninety

(90) Days after date for Value Received _I Promise To Pay to the Order of NATIONAL HOMES CORPORATION Five Thousand Eighty and 00/100 Dollars at Earl Avenue at Wallace. Lafayette, Indiana It is hereby understood that $1000. overpayments will be made on future house deliveries until this obligation is paid. With Interest at 6.5% per annum after date. All parties to this note, including endorsers and guarantors thereof, hereby waive presentment and demand for payment, protest, and notice of dishonor. No-Due_/s/ John D. Crow Crow Construction Co.” The instrument is non-negotiable.

These words were written in longhand on the face of the note, “It is hereby understood that $1000. (sic) overpayments will be made on future house deliveries until this obligation is paid.” Goldman v.

Blum and Heidenheimer Bros., 58 Tex. 630 (1883) says: “ * * * though the agreement or written instrument may have to some extent the form of a promissory note, and may use in its body the conventional terms that ordinarily invest such instruments with the character of negotiability, but if, by a stipulation in the body of the instrument, these elements which give it negotiability are limited and qualified, the negotiability of the instrument is destroyed * * See also, Martin v. Shumatte & Matthews, 62 Tex. 188 (1884).

The additional terms written into the note burden it with the conditions of an extrinsic agreement and render it non-negotiable. Lane Co. v. Crum, Tex.Com.App., 291 S.W. 1084 (1927); Texas Land & Cattle Co. v. Carroll & Iler, 63 Tex. 48 (1885). Parol evidence was properly admitted to prove that Guthrie ratified Crow’s execution of the note. Texas Land & Cattle Co. v. Carroll & Iler, supra; Grimes v. Hagood, 27 Tex. 693 (1864). National Homes Corporation, the payee, obtained a jury finding that Guthrie ratified the note and ratification is ordinarily a jury issue. Binford v.

Snyder, 144 Tex. 134, 189 S.W.2d 471 (1945). In the absence of a statement of facts, we must presume that the evidence supports the finding. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683 (1951). National Homes Corporation, therefore, proved that Guthrie was liable upon the non-negotiable note. The trial court admitted parol evidence concerning the agreement between National Homes Corporation and Crow with respect to the amount payable. The jury found that the principal amount they agreed upon was $5780 as evidenced by the figures instead of $5080 as evidenced by the written words in the note.

The jury also found that there was an unpaid balance of $780. In other words $5000 had been paid on the note. Guthrie contends, however, that the written words “Five Thousand Eighty and 00/100 * * * Dollars” are unambiguous and. that they prevail over the figures as a matter of law. That is the rule applicable to negotiable instruments. Section 17(4),

Article 5932, Vernon’s Ann.Tex. Civ.St.; 11 Am.Jur.2d, Bills and Notes, § 158. It is our opinion that the reasons for the rule are sound and that the same rule applies and should apply to non-negotiable instruments. State v. Collier, 160 Tenn. 403, 23 S.W.2d 897, 901 (1930); Duvall v. Clark, 158 S.W.2d 565 (Tex.Civ.App.1941, writ ref. w. o. m.); Wallace v. Cook, 190 Ky. 262, 227 S.W. 279, 281 (1921); Romine v. Haag, 178 S.W. 147 (Mo.1915); 17A C.J.S. Contracts § 311.

When there is a variance between unambiguous written words and figures the written words control, and the trial court erred in giving judgment based upon the figures. The amount payable was therefore “Five Thousand Eighty and 00/100 * * * Dollars” and according to the jury $5,000 has been paid. National Homes Corporation should have judgment for only eighty dollars. The judgments of the trial court and the Court of Civil Appeals are accordingly reformed so that National Homes Corporation shall have judgment for the sum of eighty dollars. Costs are adjudged against the National Homes Corporation.