Carleton v. Cowart

• Decision Date: 02 April 1898
• Parties: CARLETON v. COWART et al.
• Court: Texas Court of Appeals

45 S.W. 749

CARLETON v. COWART et al.

Court of Civil Appeals of Texas.

April 2, 1898.

Appeal from Fannin county court; James Q. Chenoweth, Judge.

Action by C. W. Cowart against J. C. Carleton and others. Judgment for plaintiff. Defendant Carleton appeals. Reversed.

Taylor & McGrady, for appellant. Agnew & Duncan, for appellees.

RAINEY, J.

C. W. Cowart sued to recover on a note signed by S. H. Gaines and J. C. Carleton. Gaines filed no answer, and judgment was rendered against him by default. Carleton answered by general denial, and specially, which was sworn to, as follows: "For special answer, this defendant says that plaintiff ought not to recover of this defendant on the note sued on, for that defendant Gaines is the principal maker of said note, and received the entire consideration therefor, and that this defendant signed said note as an accommodation surety for said Gaines, and he signed such note as surety upon condition that one John T. Boyd should also sign the same along with this defendant as surety for said Gaines before the same should be delivered to plaintiff, or to said Boyd as plaintiff's agent, and before the consideration therefor should be paid thereon; that, in the matter of advancing the consideration for said note, and in accepting the same, plaintiff acted through his duly-authorized agent John T. Boyd; that plaintiff's said agent, at the time of accepting said note for plaintiff, and at the time of paying the consideration therefor, well knew of said condition upon which the defendant signed said note, and had theretofore consented to said condition; that this defendant never consented that said note should be delivered or the consideration advanced thereon, save upon the aforesaid condition, and would not have signed said note except upon the said conditions." The court sustained an exception to this answer, and rendered judgment against Carleton, from which he appeals.

The only question necessary for our determination is whether said answer alleged a good defense by Carleton to plaintiff's cause of action. We think so. The defense pleaded clearly falls within the principle announced in the case of Loving v. Dixon, 56 Tex. 75. where it was held that "one who signs a joint obligation with an understanding between the principal, payee, and himself that he is but a surety, and shall not be considered bound unless the name of another surety is procured to the obligation," is not bound if that other name is not procured as...