Pennington v. Bevering

• Decision Date: 05 June 1929
• Docket Number: (No. 1082-5306.)
• Citation: 17 S.W.2d 772
• Parties: PENNINGTON v. BEVERING et al.
• Court: Texas Supreme Court

17 S.W.2d 772

PENNINGTON v. BEVERING et al.

(No. 1082-5306.)

Commission of Appeals of Texas, Section B.

June 5, 1929.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by Harry Pennington against A. H. Bevering and another. A judgment for defendants was affirmed by the Court of Civil Appeals , and plaintiff brings error. Affirmed.

Fitzgerald, Hatchitt & Pittman, of Wichita Falls, for plaintiff in error.

Allred & Allred, of Wichita Falls, for defendants in error.

SPEER, J.

A. H. Bevering and M. L. Hooker recovered a judgment against J. Fred Smith, Ross Corlett, and Harry Pennington, jointly and severally, in the sum of $30,944.44, with interest. Thereafter the judgment creditors accepted from Ross Corlett $1,000 and executed an instrument of release, and still later they released J. Fred Smith from the judgment. This suit was instituted by Pennington against the judgment creditors alleging that he had been released through the transaction with Corlett and praying a cancellation of the judgment in full. The trial court denied the plaintiff any relief, and that judgment was affirmed by the Court of Civil Appeals. 9 S.W.(2d) 401.

Plaintiff in error's right to recover is controlled by the legal effect to be given to the instrument of release executed by Bevering and Hooker to Ross Corlett, the settling debtor. That instrument is as follows:

"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, therefor, 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...