Hamiter v. State Nat. Bank of Texarkana

• Decision Date: 13 January 1913
• Citation: 153 S.W. 94
• Parties: HAMITER et al. v. STATE NAT. BANK OF TEXARKANA.
• Court: Arkansas Supreme Court

153 S.W. 94

HAMITER et al. v. STATE NAT. BANK OF TEXARKANA.

Supreme Court of Arkansas.

January 13, 1913.

Appeal from Circuit Court, Lafayette County; Jacob M. Carter, Judge.

Action by the State National Bank of Texarkana against Allen H. Hamiter and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Henry Moore and Henry Moore, Jr., both of Texarkana, for appellants. Searcy & Parks, of Lewisville, for appellee.

HART, J.

Appellee brought this suit against appellants to recover upon a promissory note which is as follows: "$623.35. Texarkana, Arkansas, Sept. 11, 1908. Four months (days) after date, we, or either of us promise to pay to the order of the State National Bank of Texarkana, Six Hundred and Twenty-three and 35-100 Dollars, for value received, negotiable and payable, without defalcation or discount, at the State National Bank of Texarkana, Texarkana, Arkansas, with interest from maturity, at the rate of Ten Per Cent per annum until paid. Allen H. Hamiter. N. D. Harrel. J. O. Smith." The complaint alleges that the sum of $423.35 is due and unpaid, and judgment is asked for that amount. On the 15th day of August, 1912, appellee filed an amendment to its complaint, in which it stated that it held a note executed to it by Allen H. Hamiter for $422, due September 20, 1911, and states that it canceled said note and agreed to return it to said Hamiter. The prayer is for judgment on the original note sued on. Appellants Allen H. Hamiter and N. D. Harrel each filed a separate answer, which are substantially the same. Each admits the execution of the note sued on by appellee herein, and alleges that at the maturity of the note sued on appellee accepted a new note for the amount then due executed by Allen H. Hamiter; that the new note was accepted by the appellee with the express understanding and agreement that it was taken in full satisfaction and payment of the note sued on; that the new note has been repeatedly renewed by Allen H. Hamiter, and the interest paid, and the sum of $80 was paid on the principal of said renewed note on March 10, 1911. It is further alleged that through the negligence and oversight of appellee said renewed note has not been marked paid or delivered to appellants. Appellee filed a demurrer to the answer of appellants which was sustained by the court. Appellants declined to plead further, and the court directed a verdict in favor of appellee for the amount due on the note sued on. The case is here on appeal.

To reverse the judgment, counsel for appellants invoke the general rule laid down by this court that, where by express agreement of the parties a renewed note is taken in full satisfaction and absolute payment of the old note, the original debt is extinguished and a new debt created, but in making this contention counsel have not taken into consideration the rule which is equally well settled, that an agreement, in order to be binding, must have a consideration to support it. This point was expressly ruled in ...