Baker v. Wahrmund

• Decision Date: 22 November 1893
• Citation: 23 S.W. 1023
• Parties: BAKER v. WAHRMUND.
• Court: Texas Court of Appeals

23 S.W. 1023

BAKER v. WAHRMUND.

Court of Civil Appeals of Texas.

November 22, 1893.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by James L. Baker against Otto Wahrmund as guarantor of two promissory notes. From a judgment in defendant's favor, plaintiff appeals. Affirmed.

B. L. Aycock, for appellant. Upson & Bergstrom, for appellee.

FLY, J.

Appellant sued appellee as indorser of two promissory notes. Appellee answered that he had signed the notes after their execution, as guarantor, and pleaded want of consideration. We conclude from the record that the following facts were proved: That on May 17, 1886, J. B. Belohradsky executed two promissory notes to appellant, — one for $1,000, due 13 months after date, the other for $946, due 16 months after date. That, about one week after the execution of the notes, appellant induced appellee to indorse the notes by telling him that he (appellant) wanted to raise the money on the notes, and that he could not do it without a surety on the note; that Belohradsky had told him (appellant) that Scholz would sign the notes, but Scholz refused, and that he had seen Belohradsky again, and he had told him that appellee might sign them. That appellee then wrote his name on the back of the notes. That he received nothing for signing the notes, nor did anyone else get anything. That the notes were given by Belohradsky for the interest that appellant had in the firm of J. B. Belohradsky. That appellant was, prior to the execution of the notes, a member of the firm of J. B. Belohradsky. That, at the time of the dissolution of the firm aforesaid, it was indebted to appellee in the sum of $4,000 for borrowed money. That appellee, before the dissolution of the partnership, became surety for a number of debts to different parties, which became due at different dates from May 6, 1886, up to August 3d. The sums so paid by appellee on security debts for said firm amounted, in the aggregate, to about the sum of $2,500, with interest. That the firm of J. B. Belohradsky & Co. consisted of J. B. Belohradsky, S. E. Baker, and appellant. That the first-named members of the firm were insolvent. That Belohradsky was living in Mexico. That none of the sums paid out on the security debts for the firm were ever repaid to appellee. That, after the dissolution of the partnership, appellee had taken a third mortgage on the property of Belohradsky, being all the property that had belonged to the firm, to secure the payment of the $4,000 due by the firm for borrowed money. That all the property had been sold to pay off the mortgage debts, which it barely paid off, and that the firm had no other property. That the amount paid on the security debt had never been paid to appellee.

We shall discuss the errors assigned in appellant's brief, and give our conclusions thereon, in the order in which they are presented:

The first assignment of error goes to the action of the court in overruling appellant's special exceptions to appellee's plea of want of consideration. Appellee alleged, in the plea excepted to, that "he did indorse his name on the back of said notes, but alleged and charges that, for said agreement to guaranty the payment of said notes, he received no payment and no consideration whatsoever, and that, therefore, said contract is not valid and binding against him." The exception did not go to the manner and form of the plea, but to the affidavit at the end of the answer, which is as follows: "Otto Wahrmund, being first duly sworn, says that this statement in the above petition, that his guaranty was without consideration paid to him, is true." It is evident that the word "petition" was inadvertently used for "answer," but the exception was, that "the affidavit is restricted to a consideration paid to him." The exception was sustained, and appellee was permitted to amend his affidavit so that it read, "Now comes the defendant in the above styled and numbered cause, and says that the fact, as alleged in his first amended original answer, that his indorsement of guaranty of the notes sued upon is without consideration, is true." If the first affidavit was imperfect and insufficient, we are of the opinion that the amended one was sufficient. There was no error in permitting the amendment. It merely went to the form of the affidavit, the facts being sufficiently pleaded, and they are sworn to be true. It was not setting up new substance and facts, but simply was an amendment to the affidavit to the truth of the facts alleged. No form for the affidavit of failure of consideration is...