George v. Union Bank & Trust Co. of Fort Worth

• Decision Date: 06 May 1949
• Docket Number: No. 15040.,15040.
• Citation: 220 S.W.2d 686
• Parties: GEORGE et al. v. UNION BANK & TRUST CO. OF FORT WORTH.
• Court: Texas Court of Appeals

220 S.W.2d 686

GEORGE et al. v. UNION BANK & TRUST CO. OF FORT WORTH.

No. 15040.

Court of Civil Appeals of Texas. Fort Worth.

May 6, 1949.

Rehearing Denied June 3, 1949.

Appeal from County Court at Law, Tarrant County; Drew S. Clifton, Judge.

Suit by the Union Bank & Trust Company of Fort Worth, Tex., against Mary George and others on a note. From a judgment for the plaintiff, the defendants appeal.

Judgment affirmed.

M. Hendricks Brown and Wm. B. Townsend, both of Fort Worth, for appellants.

Dave Miller, Mays & Mays, and Chas. Mays, all of Fort Worth, for appellee.

SPEER, Justice.

The Union Bank and Trust Company, a banking corporation, instituted this suit in The County Court at Law of Tarrant County, Texas, against Mary George and her two adult sons, Don George and Mike George, on a promissory note for the principal sum of $417.50, bearing interest at eight per cent per annum and providing for ten per cent attorney's fees. The note was signed by Mary George and endorsed by Don and Mike George. The obligation was payable in installments of $30 each; it contained an accelerating maturity clause.

Defendants answered by general denial and a verified plea of want of consideration. Trial was to the court without a jury and judgment was entered for plaintiff and defendants have appealed.

A single point of error is relied upon for reversal. It reads: "The promissory note upon which the judgment herein is based is unenforceable because it is not supported by valuable consideration."

Nick George, the husband of Mary George and the father of Don and Mike George, owed the plaintiff $417.50, evidenced by one or two notes at the time of his death in January, 1948. The obligation was a community debt. He also owed another creditor. No administration on his estate was pending and none was contemplated. At the time of his death he had $8 on deposit with plaintiff and owned a community homestead. At the date of trial defendant Mary George was living in the home. The record does not show that there was any other property; she said there was none.

At the request of plaintiff the three defendants called at the banking house of plaintiff and after a conference with an official of the bank they said they wanted to pay the indebtedness. Installment terms were agreed upon and they executed the note sued on. The bank officer said he gave them the notes that had been signed by Nick George, deceased, and Mary George said he did not, that she never saw them. The two defendant sons did not testify at the trial.

There are no fact findings or conclusions of law filed by the court. The judgment is in short form, finding the existence of the note and making reference to its terms, and decrees judgment for plaintiff against the defendants for the principal, interest and attorney's fees.

The sole question before us is: Under the facts in this case was there a consideration for the execution by defendants of the note sued on?

It is the universally accepted rule that the forbearance to enforce an existing valid obligation or its cancellation and novation will furnish sufficient consideration for a new obligation by a debtor or by a third person to pay the original debt. Art. 5933, sec. 25, R.C.S.; 31 Tex. Jur. 389, sec. 6; 6 Tex.Jur. 652, secs. 54, 55 and 56; Von Brandenstein v. Ebensberger, 71 Tex. 267, 9 S.W. 153; 6 Williston on Contracts, p. 5243, sec. 1866. As applicable to the facts in this case it has been held that there is a valuable consideration for a note executed by the surviving wife for payment of a community debt contracted by a deceased husband when novation of the original community obligation of a husband is shown. Reuter v. Sullivan, Tex.Civ.App., 47 S.W. 683; McFarland v. Shaw, Com'r, Tex.Com. App., 45 S.W.2d 193; Koen v. Gardner, Tex.Civ.App., 178 S.W.2d 173.

The last above announced rule is also applicable to third persons and administrators who execute renewal and extension obligations in lieu of pre-existing obligations of another, even though they were in no way legally or morally bound to pay the original indebtedness. People's State Bank v. Fleming-Morton Co., Tex. Civ.App., 160 S.W. 648; Edwards v. Hatch, Tex.Civ.App., 106 S.W.2d 741; Hester v. Kemper Military School, Tex. Civ.App., 138 S.W.2d 833.

Defendants, appellants here, do not seriously controvert the above announced principles but do insist that the obligation sued on was without consideration because the release by plaintiff of the deceased's obligation in exchange for the new note wrought no detriment to plaintiff in that its old note was worthless. It is argued that there was no estate left by deceased out of which the old obligation could be collected. However, it is undisputed that deceased had two creditors, and left $8 on deposit in plaintiff bank;...