Hueske v. C. E. Broussard & Co.
| Decision Date | 06 May 1881 |
| Docket Number | Case No. 2768. |
| Citation | 55 Tex. 201 |
| Court | Texas Supreme Court |
| Parties | F. HUESKE, ADM'R, ETC., v. C. E. BROUSSARD & CO. |
APPEAL from Washington. Tried below before the Hon. I.B. McFarland.
Suit by appellee against John Shackey and C. Hueske. The allegations of the petition in this case are, in substance, that Wilman & Co. were indebted to the plaintiffs on two promissory notes, copies of which are given; that on the 13th day of January, 1870, the defendants (who are alleged to be partners), for a valuable consideration, by their written indorsements by them subscribed by their firm name of John Shackey on each of said two notes, accepted and assumed the payment thereof, and promised plaintiffs that they would pay them the several sums of money in said notes mentioned, ninety days after said 13th day of January, 1870, with interest thereon from said date at ten per cent. per annum, which written indorsements are as follows:
“Accepted, payable ninety days from January 13, 1870, with interest from this date at ten per cent. per annum.
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¦(Signed)¦JOHN SHACKEY.” ¦
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Similar allegations are also made as to two other notes set out in the petition, accepted and assumed by the defendants on the 11th day of February, 1870. That the plaintiffs, relying on and confiding in the said several promises of the defendants, did, on said January 13, 1870, and on said February 11, 1870, release said Wilman & Co. from all liability and indebtedness on account of said four promissory notes; and that said Wilman & Co. have never paid the same or any part thereof; that the defendants paid $111.50, April 5, 1870, and that the balance thereof was due and unpaid.
The defendants answered by a general demurrer and a general denial, and each filed separate defenses. Shackey excepted specially to the petition, because it appeared that suit was not brought to the first term of court, and C. Hueske pleaded non est factum, denying that he was a partner of his co-defendant.
The defendants' exceptions were overruled because the undertaking of the firm of John Shackey, as alleged in the petition, was an original one, and not that of indorser, surety or guaranty, and the statute cited by appellant was not applicable.
Verdict and judgment for the plaintiffs for $1,621.50. Motion for new trial overruled; defendant F. Hueske, administrator of the estate of C. Hueske, appealed, and assigns errors. There was no statement of facts or bill of exceptions.
Shepard & Garrett and Sayles & Bassett, for appellant.
I. The liability of the defendants is to be determined by their written indorsements upon the notes. The petition does not allege any agreement between plaintiffs and defendants to discharge Wilman & Co. from their liability on the notes; nor would such testimony have been admissible even if there had been proper pleadings to vary the effect of the written indorsement. Rockmore v. Davenport, 14 Tex., 602;Reid v. Allen, 18 Tex., 241.
II. The undertaking of the defendants, as alleged in the pleadings, was to assume the payment of the notes upon which other parties were then bound, and remained bound; in other words, the defendants guaranteed the payment of certain notes of Wilman & Co.
“A guaranty, in its legal and commercial sense, is an undertaking by one person to be answerable for the payment of some debt or the due performance of some contract or duty by another person, who himself remains liable to pay or perform the same.” Story on Promissory Notes, § 457. In Cook v. Southwick, 9 Tex., 615, it is held that when a person not the payee signs his name on the back of a promissory note, at the time of its inception, he becomes liable as guarantor or surety. Carr v. Rowland, 14 Tex., 275;Chandler v. Westfall, 30 Tex., 475;Harrison v. Sheirburn, 36 Tex., 73.
III. Suit could not be maintained against defendants as guarantors or sureties unless it has been or is simultaneously commenced against the principals, except under certain conditions, none of which are alleged in the petition. Pasch. Dig., art. 1426; Carr v. Rowland, 14 Tex., 275;Campbell v. Beckwith, 17 Tex., 439.
IV. But the petition further shows that the plaintiffs could not have maintained suit against the principals upon the notes; the plaintiffs alleging that they had released them from their liabilities thereon. Burke v. Cruger, 8 Tex., 66;Cruger v. Burke, 11 Tex., 694;Wybrants v. Lutch, 24 Tex., 309;Pilgrim v. Dykes, 24 Tex., 383; Story on Promissory Notes, § 408.
Breedlove & Ewing, for appellees.
There being no statement of facts in the record, it will be presumed that the judgment was warranted by the testimony; and all presumptions are in favor of the verdict. Neither is there a bill of exceptions; and the only question which may be revised on this appeal is, whether the plaintiffs' petition afforded a sufficient basis to support the judgment.
If evidence might have been offered under the allegations of the petition, to warrant a judgment for the plaintiffs, it will, for the purposes of this appeal, be intended that it was adduced on the trial, and that the judgment would be sufficiently supported thereby.
The question, in effect, then is, whether the plaintiffs' petition set forth a cause of action. It is contended by the appellants that it did not, because the petition showed a liability on the part of defendants collateral to the notes of Wilman & Co.; a contract of guaranty by defendants for their payment, and that the obligation created by it was destroyed, according to the petition itself, by the release of Wilman & Co. by the plaintiffs.
It is not sufficient, in order to maintain the defendants' demurrer to the petition on the ground above stated, that the written promises of the defendants to pay the notes of Wilman & Co. were susceptible of a construction, when considered distinctly from any other evidence which may have explained the meaning and contracts of the parties, which would be consistent with mere guaranties for the payment of the several notes; for if, with other competent evidence, it was admissible to show that the undertakings of the defendant were original promises to pay the notes unqualifiedly, for a sufficient consideration, and not as guarantors to...
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