Bason v. Hughart
| Decision Date | 31 December 1847 |
| Citation | 2 Tex. 476 |
| Parties | HENRIETTA BASON, ADM'X OF GEORGE BASON, v. EDWARD HUGHART |
| Court | Texas Supreme Court |
Appeal from Red River County.
Execution cannot be awarded on a judgment rendered in the district court against an administrator, on a claim against the estate of the intestate. Such judgment must be settled concurrently with other debts against the estate in the probate court.
To constitute a consideration, valid in law, it is not essential that it should be mutually beneficial to both parties to the contract; damage to the promisee is a sufficient consideration.
To bring a promise, not in writing, to pay the debt of another within the statute of frauds, it is necessary that the debt promised to be paid should be a subsisting and continuing one; and that the undertaking be collateral and auxiliary to that debt.
If the consideration for the promise to pay the debt of another be the discharge of the former debt, and the debt is discharged in consequence of the promise, the undertaking to pay is not collateral, but is an original contract which need not be in writing.
To maintain a suit upon a verbal promise to pay the pre-existing debt of another, the consideration for which was the discharge of the former debtor's liability, it must be averred that the pre-existing debt was discharged; and the want of such averment may be reached by demurrer.
Case stated in the opinion of the court.
Morrill, for appellant.
E. Allen, for appellee.
This suit was brought by the appellee against the appellant to recover a certain amount alleged to be due to the appellee from the appellant's intestate.
The substance of the petition is as follows, i. e.:
That at the fall term of the district court for Red River county, by the consideration of the said court, petitioner recovered judgment against one Adam Hampton and William D. Stuart, the latter a free man of color, for one hundred and thirty-seven dollars and fifty cents damages, and one hundred and eighty-two dollars and fifty cents costs of suit. That an execution was levied on a horse, as the property of Stuart, and sold for thirty-three dollars and thirty-three cents and purchased by the petitioner, which sum was two-thirds the appraised value of the horse; that at the time of the sale Stuart was absent beyond the limits of the republic; that George Bason, wishing Stuart's return to labor for him in his blacksmith shop, made a parol agreement with petitioner that if he would permit the said Stuart to return and labor for him, and not trouble him by means of the judgment, and would allow eighty dollars for the horse purchased at the sheriff's sale instead of thirty-three dollars and thirty-three cents, he, Bason, would, in the course of the year 1840, pay the balance of the judgment after deducting the eighty dollars, in notes, accounts, guns, and a horse, at fair prices, to be fixed by the parties. Petitioner alleges that he acceded on his part to the terms proposed by Bason, and did allow, in part payment of the said execution, eighty dollars for the horse, and agreed to permit the said Stuart to return and work in Bason's shop, and further agreed to receipt the balance due on said execution in the manner and time offered by the said Bason; that he did permit the said Stuart to return, and that he was not at any time interrupted by the petitioner; that Bason had not paid the said judgment according to his agreement, and that he had failed to do so; that since the death of Bason the claim had been presented to the defendant, as administratrix, for allowance, but that she had refused to allow the same as a claim against the estate of her intestate.
The administratrix admits the presentation and her refusal to allow the claim, and denies the plaintiff's cause of action, and claims the benefit of the statute of frauds of the 18th January, 1840, p. 28, as a defense in law.
The demurrer was overruled, and there was a verdict for the plaintiff, and judgment, and an award of execution. The appellant seeks to reverse the judgment:
1st. On the ground that the court erred in awarding an execution against the administratrix; and
2d. On the ground that the court erred in overruling the demurrer.
It will be seen by referring to the 19th and 20th sections of the act to regulate proceedings in the probate court in successions passed in 1840 (acts, p. 116), that the court clearly erred in awarding execution on the judgment. It is expressly prohibited suing out execution, but the judgment is to be settled concurrently with other debts against the estate; this, however, can be corrected in this court.
The second ground relied on is one of more importance and much more difficult to be decided. It presents three questions of law arising from the facts shown on the face of the petition.
1st. Is there any consideration deemed valuable in law to sustain the agreement as it is stated?
2d. Is the agreement shown a promise to pay the debt of another?
3d. Admitting the contract should be free from the preceding...
To continue reading
Request your trial
-
Wood v. Canfield Paper Co.
...It is Popular Finance Publishing Corporation's debt for which Wood is sought to be held; liability of that debtor persists (see Bason v. Hughart, 2 Tex. 476; Smith v. Montgomery, 3 Tex. 204; Warren v. Smith, 24 Tex. 484, 76 Am. Dec. 115; and Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291);......
-
Kellogg v. Southwestern Lumber Co. of New Jersey
...against the property of the succession, and the judgment is ranked only among the acknowledged debts of the estate." Again, in Bason v. Hughart, 2 Tex. 476, where a claim had been presented to the administratrix and refused, the court "The appellant seeks to reverse the judgment— "1st. On t......
-
Garza v. Milmo Nat. Bank
...or displaced — thereafter by suit and otherwise the bank held the original debtor to be primarily liable — and such cases as Bason v. Hughart, 2 Tex. 476, Smith v. Montgomery, 3 Tex. 204, Warren v. Smith, 24 Tex. 484, 76 Am. Dec. 115, and Muller v. Riviere, supra, or the principles upon whi......
-
Home Ins. Co. of New York v. Lake Dallas Gin Co.
...party or the other, or both, would be benefited or injured thereby, prevented its being a nudum pactum. Cobb v. Beall, 1 Tex. 342; Bason v. Hughart, 2 Tex. 476; Tex.Jur. vol. 10, p. 129, § It may be added that it is settled in this state that the breach of a policy provision such as is here......