Hill v. Frost
| Decision Date | 23 February 1883 |
| Docket Number | Case No. 1588. |
| Citation | 59 Tex. 25 |
| Parties | F. E. HILL v. H. H. FROST. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Fort Bend. Trial below before the Hon. Wm. H. Burkhart.
Frost brought this suit against Mrs. F. E. Hill to charge her with the debt of her son, Tobe Hill.
Suit was brought in the justice court, appealed to the county court, and certified to the district court by reason of the disqualification of the county judge. Frost obtained judgment for the amount of his account, and Mrs. Hill appealed. The sole question was whether or not the evidence takes the case out of the statute of frauds.
The court instructed the jury that if they believed from the evidence that Frost was about to sue Tobe Hill, and that appellant promised to pay the debt, and that by that promise Frost was induced to stop his suit, they would find for the plaintiff. There was no knowledge brought home to Mrs. Hill that Frost was about to sue.
W. L. Davidson, for appellant.
There was no agreement, such as is contemplated by the statute of frauds, made by Mrs. Hill.
If she had agreed to assume the debt on condition that her son be discharged, it would be an original undertaking on her part, and would bind her, whether written or verbal.
There was no agreement to discharge her son, nor was he in law discharged. There was no contract between her and the appellee that the contemplated legal proceedings against B. G. Hill should be discontinued, and he be discharged, and the debt transferred from his to his mother's account, and she alone thereupon was to become chargeable therewith. On the contrary, it is admitted that she did not even know that the account of her son had been placed in the hands of an attorney for collection, nor did she know that the appellee had charged the account on his books so as to make it her account, and not that of B. G. Hill. Says Judge Lipscomb: “If the promise is to suspend legal proceedings against the debtor, or to forbear commencing suit, it must be in writing, because the indebtedness of the original party is not discharged, and the undertaking is for his debt and is collateral.” Bason v. Hughart, 2 Tex., 480. If the promise is merely collateral and auxiliary to the original debt, it would be nothing more than a verbal agreement to pay the debt of another, and is within the statute.
The agreement to take the case out of the statute must not only be in writing, but, like any other promise binding in law, must be...
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Shahan-Taylor Co. v. Foremost Dairies
...where the facts show an antecedent debt may differ from that required where the debt arose contemporaneously with the undertaking. Hill v. Frost, 59 Tex. 25; Kollatt v. Clements, Tex.Civ.App., 3 S.W.2d 855; See Note, 40 L.R.A., N.S., 242. Because a 'new consideration' is necessary in some c......
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Garza v. Milmo Nat. Bank
...to answer for the debt, default or miscarriage of another" in plain contravention of subdivision 2 of article 3995, R. S. 1925. Hill v. Frost, 59 Tex. 25; Bason v. Hughart, supra; Warren v. Smith, supra; Williams v. City National Bank (Tex. Civ. App.) 166 S. W. The defenses of lack of consi......
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Williams v. City Nat. Bank
...* "No. 2. To charge any person upon a promise to answer for the debt, default, or miscarriage of another; or. * * *" In the suit of Hill v. Frost, 59 Tex. 25, our Supreme Court used the following language: "If the promise is merely collateral and auxiliary to the original debt, it would be ......
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Suniland Furniture Co. v. Pruitt, 3863
...of a guarantee to 'assure' payment in event of the corporation's default, a distinctly collateral undertaking within the statute. Hill v. Frost, 59 Tex. 25; Garza v. Milmo Nat. Bank, Tex.Com.App., adopted, 280 S.W. 548, 551; 20-A Tex.Jur. Sec. 13, p. The evidence, therefore, adequately supp......