Baker v. Coleman Abstract Co.

• Decision Date: 20 December 1922
• Docket Number: (No. 6533.)
• Citation: 248 S.W. 412
• Parties: BAKER v. COLEMAN ABSTRACT CO.
• Court: Texas Court of Appeals

248 S.W. 412

BAKER v. COLEMAN ABSTRACT CO.

(No. 6533.)

Court of Civil Appeals of Texas. Austin.

December 20, 1922.

Rehearing Denied February 14, 1923.

Appeal from Coleman County Court; L. G. Mathews, Judge.

Suit by the Coleman Abstract Company against G. Wm. Baker and others. Judgment for plaintiff, and the named defendant appeals. Affirmed.

Baker & Weatherred, of Coleman, for appellant.

Critz & Woodward, of Coleman, for appellee.

BRADY, J.

The suit was brought in the justice court, and later tried in the county court on appeal. Appellee as plaintiff sued F. L. Wade, W. M. Hooper, and G. Wm. Baker, the appellant, as members of the firm of Mid-Continent Oil Lease Exchange, for a balance on account for abstracts furnished such firm. Defendants Wade and Hooper suffered judgment by default. Appellant defended on the ground that he had paid to appellee the sum of $73.17 as his proportionate one-third of the account, with the understanding and agreement with appellee's agent and general manager, E. P. Scarborough, that such sum was accepted in full of all claims against appellant arising out of the account. He further alleged that Wade and Hooper were solvent at the time he made such payment, and that appellee failed to bring suit against them until they were insolvent, which condition existed at the trial; and that appellee had retained the amount paid by appellant, had never repaid nor offered to repay the same, and was therefore estopped. There was no sworn denial of the partnership. By supplemental petition, appellee pleaded want of consideration for the agreement and release, if it was ever made, and also pleaded that its general manager had no authority to make such agreement.

The case was submitted to a jury upon special issues, and the answers were, in substance, as follows: That the general manager of appellee agreed with appellant to release him from further liability, upon the payment of one-third of the account, which was paid by appellant in reliance upon such agreement, and was accepted by the general manager as full payment of appellant's liability. That appellant would not have paid such sum if the general manager had not promised to accept it in full settlement as to him, and that Mr. Scarborough was the general manager and in sole charge and control of the business of the company. That appellee has never returned nor offerred to return the check or proceeds. That, at the time of the delivery of the check by appellant, the other defendants had money or property out of which the indebtedness could have been collected, and did not have money or property sufficient to satisfy the same at the date of the filing of the suit. Both parties moved for judgment on the verdict. The motion of appellant was denied, and the court, upon such findings and upon the facts and evidence in the case, rendered judgment for appellee.

It is manifest that the court did not base the judgment upon the findings of the jury, as they were practically all favorable to appellant, but upon the theory that the agreement and release found by the jury was without consideration, or that the general manager was without authority to release appellant, or upon both such grounds. The evidence supports the findings of the jury, but, as will be hereafter indicated, it also supports the conclusion that there was no consideration, and that the agent had not the authority to release appellant, at least without a consideration. Neither party requested that either of these last two issues be submitted to the jury, although appellant did ask an instruction defining what would constitute consideration.

In Simmons Hardware Co. v. Adams (Tex. Civ. App.) 147 S. W. 1196, this court recognized the following rule:

"The payment of the part of a debt which is * * * undisputed is not a sufficient consideration to support a promise to accept the same in full payment of the debt. In such a case the creditor has done no more than he was already legally bound to do"—citing numerous authorities.

It is true that in the later case of Schulze v. Waco Land & Trust Co. (Tex. Civ. App.) 177 S. W. 157, the doctrine was criticized, and very respectable authorities cited denouncing the rule. However, this court again recognized that such was the rule generally prevailing, although finding it unnecessary to decide the question.

In the case of Rotan v. Noble, 36 Tex. Civ. App. 226, 81 S. W. 586, it was said:

"The least consideration, however, in such a case [where the creditor has agreed to accept part in payment of the whole] is sufficient to make the agreement binding."

In that case the court found that there was ample consideration.

In Ferguson v. Garrett (Tex. Civ. App.) 235 S. W. 245, the court recognized the general doctrine, but found that there were legal considerations to support the agreement. Cases cited by appellee are: Bergman Produce Co. v. Brown (Tex. Civ. App.) 156 S. W. 1102; Id. (Tex. Civ. App.) 172 S. W. 554; Simmons Hardware Co. v. Adams (Tex. Civ. App.) 147 S. W. 1196; Rotan Grocery Co. v. Noble, 36 Tex. Civ. App. 226, 81 S. W. 586; Bowdon v. Robinson, 4 Tex. Civ. App. 626, 23 S. W. 816; Clifton v. Foster (Tex. Civ. App.) 20 S. W. 1005; Schulze v. Waco Land & Trust Co. (Tex. Civ. App.) 177 S. W. 157; First Texas Prudential Ins. Co. v. Connor (Tex. Civ. App.) 209 S. W. 417; Franklin Ins. Co. v. Villeneuve, 25 Tex. Civ. App. 356, 60 S. W. 1016; Graham v. Kesseler (Tex. Civ. App.) 192 S. W. 299; 1 C. J. 539, 540; 1 Elliott on Contracts, §§ 217, 2076; 1 R. C. L. 184, § 15.

Whatever may be said of the justice or logic of the rule in question, it is undoubtedly recognized in this state, and must be enforced in a proper case. In the instant case we have not been able to find in the evidence any proof of a consideration valuable or good in law. Appellant was originally liable for the entire debt as one of the partners. His payment of one-third of the amount was...