Pennington v. Bevering

• Decision Date: 07 July 1928
• Docket Number: (No. 11994.)
• Citation: 9 S.W.2d 401
• Parties: PENNINGTON v. BEVERING et al.
• Court: Texas Court of Appeals

9 S.W.2d 401

PENNINGTON v. BEVERING et al.

(No. 11994.)

Court of Civil Appeals of Texas. Fort Worth.

July 7, 1928.

Rehearing Denied September 29, 1928.

Appeal from District Court, Clay County; Vincent Stine, Judge.

Suit by Harry Pennington against A. H. Bevering and another. From a judgment denying the relief prayed, plaintiff appeals. Affirmed.

Fitzgerald & Hatchitt, of Wichita Falls, for appellant.

Allred & Allred, of Wichita Falls, for appellees.

DUNKLIN, J.

On April 8, 1922, this court rendered a final judgment in favor of A. H. Bevering and M. L. Hooker against J. Fred Smith, Ross Corlett, and Harry Pennington, jointly and severally, for the sum of $30,994.44, with interest thereon from June 18, 1921, at the rate of 10 per cent. per annum, together with costs of suit. On June 1, 1925, A. H. Bevering and M. L. Hooker, for a consideration of $1,000 then paid by Ross Corlett, released the latter from further liability on said judgment, and as evidence of such settlement executed to him the following release:

"Whereas, in a suit of A. H. Bevering et al. v. J. Fred Smith et al., formerly pending in the district court of Clay county, Texas, being cause No. 4370, judgment was originally rendered in said cause, dismissing said suit and discharging the defendants therefrom; and,

"Whereas, the plaintiffs in said case appealed the same to the Court of Civil Appeals of the Second Supreme Judicial District of Texas, at Fort Worth, and by judgment entered by said court on April 8, 1922, the judgment of the district court of Clay county, Texas, was reversed, and judgment there rendered for the plaintiffs for the sum of thirty thousand nine hundred four dollars and 44/100 cents, and for the recovery of all costs incurred in said case, which judgment was rendered against the defendants, J. Fred Smith, Ross Corlett and H. Pennington; and

"Whereas, thereafter judgment was rendered by the district court of Clay county, Texas, in accordance with said judgment of the Court of Civil Appeals; and

"Whereas, because of insolvency of the defendants, the plaintiffs have been unable to collect any part of said judgment; and,

"Whereas, all of said defendants are at this time insolvent, and the plaintiffs are unable to make any part of said judgment out of them, or any of them; and,

"Whereas, Ross Corlett, one of said defendants, has offered, at the instance and request of the plaintiffs in said judgment, to arrange to borrow the sum of one thousand dollars and pay to the said plaintiffs in cash, in consideration of the said plaintiffs agreeing to accept said payment of one thousand dollars by said Ross Corlett as full, final, and complete payment and satisfaction of said judgment, in so far as the said Ross Corlett is concerned:

"Now, therefore, know all men by these presents, that we, A. H. Bevering and M. L. Hooker, the plaintiffs in the above-entitled judgment, and the owners and holders of the same at this time, for and in consideration of the insolvency of said defendants, and of the said Ross Corlett, and of the fact that the said Ross Corlett has arranged and borrowed the sum of one thousand dollars, and this day paid the same to us, do hereby release and discharge the said Ross Corlett from any and all other and further liability of every kind and nature to us by reason of said judgment, and do hereby release and discharge said judgment in so far as the said Ross Corlett or his heirs are concerned, and do hereby further discharge and release any and all judgment liens that may be filed and existing in any county in the state of Texas by reason of said judgment, in so far as the said Ross Corlett, and any property that he now has or may hereafter acquire, is concerned, and do hereby state and declare that the payment to us of said sum of one thousand dollars by the said Ross Corlett, under the circumstances hereinabove stated, is a full and final payment and settlement of all matters between us and the said Ross Corlett, and we, the said plaintiffs in the above-mentioned judgment, do hereby covenant to and with the said Ross Corlett at this time, and under the circumstances hereinabove stated, we will at all times hereafter protect, indemnify, and hold the said Ross Corlett harmless against any and all claims and demands of every kind and character that may be made by us, our heirs, or any person claiming by, through, or under us, or either of us, on account of the judgment hereinabove mentioned.

"Witness our hands this the 1st day of June, 1925.

                                           A. H. Bevering
                                           "M. L. Hooker."
                

On June 20, 1927, Harry Pennington instituted this suit against A. H. Bevering and M. L. Hooker, for a decree of court declaring the judgment theretofore rendered against him and Ross Corlett and J. Fred Smith liquidated and settled in full as to all of the defendants therein, by reason of the settlement so made with Ross Corlett. There was a further prayer for a writ of injunction, perpetually enjoining A. H. Bevering and M. L. Hooker, the owners of such judgment, from in any manner attempting to enforce the collection of the same. The former judgment and release to Ross Corlett were specially pleaded, and copies thereof were attached to the plaintiff's petition. The case was tried before the court without a jury, and this appeal has been prosecuted by Harry Pennington, the plaintiff, from a judgment of the trial court denying him the relief prayed for.

In addition to a general demurrer, defendants specially pleaded that, at the time of the release given to Ross Corlett, there was no controversy or dispute between the parties as to the amount then owing on the judgment, and that the sum paid by Corlett was not a sufficient consideration in law for the release of the entire judgment. Another special pleading was that, at the time of the execution of the release, it was orally understood and agreed between the defendants and Ross Corlett that the release should operate only to discharge Ross Corlett, and that the defendants reserved the right to enforce the judgment against Harry Pennington and J. Fred Smith for the unpaid balance of said judgment, after crediting thereon the $1,000 paid by Corlett. Defendants further pleaded that the judgment was a joint and several liability on the part of Harry Pennington, Ross Corlett, and J. Fred Smith, and that the release of itself did not have the effect in law or fact to release Pennington and Smith from further liability thereon.

There was a further plea that after the execution of the release, and on the 14th of August, 1925, defendants executed a release of the judgment in so far as the same affected J. Fred Smith, because he was then insolvent and had been adjudged a bankrupt, and the release as to him was executed in order to clear up and remove cloud from title of the property he then owned, and in which said release it was expressly stipulated that the same should not operate as a release of the other defendants in said judgment.

Upon the trial of the case A. H. Bevering testified that, when Ross Corlett wanted to obtain a release from the judgment, he told the witness that he was broke, and with that judgment hanging over him ...