Carpenter v. Minter

• Decision Date: 21 December 1888
• Citation: Carpenter v. Minter, 12 S.W. 180, 72 Tex. 370 (Tex. 1888)
• Parties: CARPENTER <I>v.</I> MINTER.
• Court: Texas Supreme Court

12 S.W. 180

CARPENTER

v. MINTER.

Supreme Court of Texas.

December 21, 1888.¹

Commissioners' decision. Appeal from district court, Wise county; F. E. PINER, Judge.

Action by J. C. Carpenter against T. A. Minter, to recover a sum of money paid as surety for the latter. Plaintiff alleged that on the 10th day of August, 1885, defendant executed a note to Henry Greathouse for $306, due at 20 days, bearing 12 per cent. per annum from maturity; that plaintiff signed the note with defendant as principal, but was in fact only a surety for defendant; that by the execution of the note defendant and plaintiff became bound to pay the principal and interest thereon at maturity, and 10 per cent. attorney's fees on the amount, in case the note was not paid at maturity, making a total of $336.60; that after the maturity of the note plaintiff paid the note in full to the payee. It is then alleged that defendant became liable to pay plaintiff $336.60, being the amount actually paid out for defendant by plaintiff, including the 10 per cent. attorney's fees provided for, which sum defendant has wholly failed to pay, etc. The note, which is made an exhibit to the petition, is an ordinary promissory note for $306, due in 20 days, bearing 12 per cent. interest per annum from maturity, with the following stipulation: "In case of non-payment of the above note at maturity, we hereby authorize any licensed attorney at law to appear for us in court, and accept service, waive process, and confess judgment in favor of the legal holder of said note against us for the amount of said note and interest, with 10 per cent. attorney fees additional." The note is signed by plaintiff and defendant. Plaintiff sued out an attachment, the affidavit for which avers that the amount due by defendant is $336.60, etc. Defendant's motion to quash the attachment "because the affidavit for attachment * * * sets forth an indebtedness of $336.60, while the petition * * * shows an indebtedness of only $306," was sustained, and plaintiff excepted. Judgment for plaintiff for $328.95, and plaintiff appeals, and assigns error in the ruling of the court quashing the attachment proceedings on the ground of a variance between the petition and the affidavit for attachment.

Gose & Bonner and L. C. Sparkman, for appellant. Crane, Patterson & Martin, for appellee.

COLLARD, J.

This case must be reversed. There was no variance between the affidavit for attachment and the petition. The affidavit claimed that...