Neumann v. Schroeder

• Decision Date: 29 May 1888
• Citation: 8 S.W. 632
• Parties: NEUMANN v. SCHROEDER.
• Court: Texas Supreme Court

8 S.W. 632

NEUMANN v. SCHROEDER.

Supreme Court of Texas.

May 29, 1888.

Appeal from district court, Bexar county.

Oscar Bergstrom, for appellant. Shook, Dittmar & Van Der Hoeven, for appellee.

STAYTON, C. J.

This action was brought in justice's court, and by appeal taken to the district court. The appellant had sold hides to Croll & Hansen, who drew on the appellee for payment therefor the following instrument: "No. 378. SAN ANTONIO, TEX., 9-21, 1886. George Schroeder: Pay William Neumann one hundred and seventy dollars. (Not negotiable.) $170.00. CROLL & HANSEN." The evidence in the case is as follows: "My name is William Neumann. I am plaintiff in this cause. On or about the 21st day of September, 1886, Croll & Hansen were indebted to me in the sum of one hundred and seventy dollars, ($170,) for hides sold and delivered to Croll & Hansen, in payment whereof Croll & Hansen gave me the following order: `No. 378. SAN ANTONIO, TEX., 9-21, 1886. George Schroeder: Pay to William Neuman one hundred and seventy dollars. (Not negotiable.) $170.00. CROLL & HANSEN.' On the 22d day of said month, or next day after it was given to me, I presented it to George Schroeder, and he told me he was very busy then, buying cotton, and said, `Come back this evening.' In the evening I presented the order to him again, and he said: `You seem to be terribly anx ious about it. It is good, and would be if it was for three hundred and seventy dollars. Come in the morning and I will give you a check for it or the money. You cannot use the check this evening, anyhow.' Next morning I called upon George Schroeder again, and he laughed at me, and said Croll & Hansen are busted. `I will not pay that order, but if you will find Hansen, and bring him to me, I will pay you two hundred dollars.' George Schroeder then refused to pay said order, and has not paid the same, or any part of it, since that time. I delivered the hides to Croll & Hansen. I have not sold any of the hides for which the order is given to George Schroeder. Croll & Hansen are here now, and have been for some time. I did not present it to them for payment, because I had nothing to do with them. I looked to George Schroeder for payment of the order, because he had accepted it. George Schroeder did not accept the order in writing, nor did he give me any writing about the matter. George Schroeder said that Croll & Hansen were shipping a car-load of hides, but I knew nothing about it. Schroeder did not tell me that he had no funds with which to pay the order; nor that, as soon as Croll & Hansen had shipped the hides, and realized the money on them, he would pay me. If he had told me that I had to wait for payment of the order until he realized on the hides, I would not have waited, but could have protected myself by attachment of Croll & Hansen's hides or otherwise. George Schroeder was backing Croll & Hansen. I don't know what arrangement there was between them. I generally collected my money from Croll & Hansen on the last or the first of the month. I got it this time on the 21st, because I wanted the money. I did not know they were going to fail. I am a butcher by profession, and the amount for which the draft is given was due me for hides delivered to Croll & Hansen daily. I had been selling them hides for several months before that, and they were always paid by giving orders on George Schroeder, as was done in this case; and George Schroeder had always paid them." The instrument drawn by Croll & Hansen is the basis of the action, and it was admitted in evidence, over the objections of the appellee. The cause was tried, on the evidence here given, by the court, and a judgment was rendered in favor of the defendant. There are no conclusions of fact and law found in the record, but the briefs for both parties concede that the action of the court was based on a holding that a verbal acceptance or promise to pay the draft was not binding on the appellee, because within the statute of frauds, which provides that "a promise to answer for the debt, default, or miscarriage of another" must be in writing, signed by the party to be charged therewith. There are many cases holding that a verbal acceptance or promise to pay a check or bill of exchange may be enforced when made in a state having a statute similar to that in force in this state. The following English and American cases so hold: Lumley v. Palmer, 2 Strange, 1000; Windle v. Andrews, 2 Barn. & Ald. 699; Sproat v. Matthews, 1 Term R. 185; Miln v. Prest, 4 Camp. 395; Fairlee v. Herring, 3 Bing. 628; Jarvis v. Wilson, 46 Conn. 90; Mason v. Dousay, 35 Ill. 424; Sturges v. Bank, 75 Ill. 596; Leonard v. Mason, 1 Wend. 524; Williams v. Winans, 14 N. J. Law, 341; Walker v. Lide, 1 Rich. Law, 251; Grant v. Shaw, 16 Mass. 343; Edson v. Fuller, 2 Fost. (N. H.) 186; Barnet v. Smith, 10 Fost. (N. H.) 265; Fisher v. Beckwith, 19 Vt. 34; Stockwell v. Bramble, 3 Ind. 428; McCutchen v. Rice, 56 Miss. 458; Spaulding v. Andrews, 48 Pa. St. 412; Wells v. Brigham, 6 Cush. 6; Dunavan v. Flynn, 118 Mass. 539; Cook v. Baldwin, 120 Mass. 318; Dull v. Bricker, 76 Pa. St. 260; Pierce v. Kittredge, 115 Mass. 375. Elementary authorities to same effect: Chit. Bills, 288; 2 Pars. Notes & B. 285; Byles, Bills, 237; 3 Kent, Comm. 83; 1 Daniel, Neg. Inst. 504; Edw. Bills, 409. The English and American cases here cited were divided within jurisdictions within which the fourth section of the statute of 29 Car. II. c. 3, was in full force; and many of them expressly, and all necessarily, hold that ...