Janes v. Gerlach
| Decision Date | 31 December 1847 |
| Citation | 2 Tex. 424 |
| Parties | SMITH AND JANES v. GERLACH AND LEVENHAGEN |
| Court | Texas Supreme Court |
Writ of Error from Harris County.
A writ of error can only issue at the instance of a party to the suit; or of one whose privity of estate, title or interest appears from the record; or at the instance of the representative of such party
This suit was instituted for the recovery of the amount due upon a promissory note, executed by Gerlach and Levenhagen to Elisha Floyd, and indorsed by Floyd to Smith and Janes. It is in the following words:
“HOUSTON, August 28, 1838.
On the first day of January, one thousand eight hundred and forty, we promise to pay Elisha Floyd, or order, the sum of five thousand and seventy dollars, value received.
+----------------------------+
¦(Signed)¦FERDINAND GERLACH, ¦
+--------+-------------------¦
¦ ¦HENRY LEVENHAGEN.” ¦
+----------------------------+
At the trial a jury was waived, and judgment rendered by the court in favor of the plaintiff for the amount of the note and interest. A few days afterwards the testimony of a witness was received, the object of which was to show that the note, by the agreement of the parties, was payable in the promissory notes of the government, which were worth only fifty cents on the dollar when the debt became due. The judge then vacated the judgment which he had previously given and gave another in favor of the plaintiffs for one-half the amount of the former one. Exceptions were filed, and notice of appeal given. The bill of exceptions is as follows: “This cause was regularly called on the docket, and judgment rendered for the amount of the note and interest, with permission for the defendants to show when Mr. P. C. Jack should come, if they could by his testimony, that the note was to have been discharged in Texas promissory notes. On this, the last day of the term, Mr. Jack came, and made the statement hereby referred to, marked A, as the statement of facts in this case, upon which the court reduced the amount of judgment to one-half of the amount of the note and damages. The plaintiffs by their counsel, E. Wynns, excepted, etc.
The appeal prayed not having been prosecuted, Floyd, the indorser of the note, sued out this writ of error; and to show his interest in the matter, he filed with his petition praying for the writ, an agreement entered into between himself and the plaintiffs, Smith and Janes, in which it was stipulated that they would use all reasonable exertions to collect the amount of the note from the defendants in “good money,” and in which event they were to retain for themselves three thousand dollars and interest, and the residue was to be paid to him, Floyd; but if the note could only be collected in Texas promissory notes, they, the plaintiffs, were to retain the whole amount collected. He alleged there was error in giving judgment for only half the amount of the note by which he lost his residuum.
Webb and Megginson, for plaintiffs in error.
J. W. Henderson, for defendants in error.
Suit was brought by the plaintiffs as indorsees of Elisha Floyd, upon the promissory note of the defendants, for the payment to him, Floyd, of five thousand and seventy dollars.
Judgment was rendered for the plaintiffs for only half the amount expressed in the face of the note, that being the alleged value of the nominal amount of the note in the promissory notes of the government. The plaintiffs excepted to the opinion of the court, and the defendants appealed, but neither party took any further...
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