Pope v. Hays
| Decision Date | 01 January 1857 |
| Citation | 19 Tex. 375 |
| Parties | WILLIAM A. POPE AND ANOTHER v. THOMAS J. HAYS AND ANOTHER. |
| Court | Texas Supreme Court |
An obligation by one partner to hold the other harmless, or to indemnify him against the liabilities of the firm, is broken by the recovery of judgment against the obligee, on any of the liabilities of the firm, where the judgment has not been paid by the obligor.
That the note sued on was executed by the defendants to A, upon the dissolution of a partnership between A and B, one of the defendants, in consideration of the undertaking of A to hold B harmless against liability for the debts of the firm of A & B; that A failed to hold B harmless against said liability, and that a large number of judgments have been recovered against A & B on several of the debts of said firm, and remain unpaid; that the note was assigned to the plaintiffs by A as collateral security for the payment of other notes due them from the firm of A & B, on which suits were then pending in same court by plaintiffs against A & B, and for no other consideration; and that plaintiffs had notice of the consideration of the note sued on, and of the failure thereof. Held, to be a good plea of failure of consideration, on general demurrer.
Error from Cherokee. Tried below before the Hon. John H. Reagan.
Suit by defendants in error against plaintiffs in error, on a note signed by the defendants, payable to Allen A. Cameron, or bearer, and assigned to plaintiffs. Answer as stated in the opinion, with this addition, that it was alleged that the note sued on was assigned by Cameron to the plaintiffs as collateral security for the payment of other notes of Pope & Cameron, due plaintiffs, which were then in suit in same court, and for no other consideration; and that plaintiffs had notice of the failure of the consideration, as alleged.
A general demurrer to the answer was sustained, and plaintiffs had judgment.
Donley & Anderson, for plaintiffs in error, cited Fish v. Dana, 10 Mass. 46;Chace v. Hinman, 8 Wend. 452.
Shanks & Bonner, for defendants in error, argued that the answer did not show that defendant Pope was damaged by the failure of Cameron to pay the debts of Pope & Cameron; that they hold Cameron's covenant to hold Pope harmless, and do not allege that Cameron is insolvent; and that therefore the exception was properly sustained.
The only important question in the case is, whether there was error in sustaining the exceptions to the pleas of defendants, among which was one that set up failure of consideration in the note sued upon. This was set up in the original and the two amended answers, and in such a mass of pleading it is somewhat difficult to ascertain with precision and certainty what are the facts upon which the pleader relies; what he really intends to be the sum and substance of his defense. The defendants in their original answer aver that the note sued on was executed by the defendants to Allen A. Cameron, upon the dissolution of the firm of Cameron & Pope, in consideration that the said Cameron had covenanted and agreed with the defendants to absolve, and forever release and hold harmless the said Pope, one of the defendants in this suit, from any liability or obligation to pay any of the debts or demands against the said firm of Cameron & Pope, by any and all creditors whatever, etc. The defendants further aver that the plaintiff, at the time of receiving the note, had full and positive notice of the consideration of the same; and also averred that the consideration had failed, in this, that the said Cameron has failed to pay all the debts of Cameron & Pope, and has failed to hold the defendant Pope harmless from his liability for the debts of the said firm. The...
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Gay, Administrator v. Murphy
... ... See Smith v. Teer, 21 U. Can. Q. B. 412; Chace ... v. Hinman, 8 Wend. (N. Y.) 452; Pope v. Hays, ... 19 Tex. 375; Bennett v. Cadwell, 70 Pa. St. (253) ... 261; Fish v. Dana, 10 Mass. 46; Warwick v ... Richardson, 10 M. & W. 284; ... ...
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...at 750; Russell, 205 S.W.2d at 631. 20. See Humana Hosp. Corp. v. American Med. Sys., Inc., 785 S.W.2d 144, 145 (Tex. 1990); Pope v. Hays, 19 Tex. 375, 379-80 (1857); Tubb, 862 S.W.2d at 750; Holland v. Fidelity & Deposit Co., 623 S.W.2d 469, 470 (Tex. App.-Corpus Christi 1981, no writ); Pa......
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