Simmang v. Farnsworth

• Decision Date: 20 December 1893
• Citation: 24 S.W. 541
• Parties: SIMMANG v. FARNSWORTH.
• Court: Texas Court of Appeals

24 S.W. 541

SIMMANG v. FARNSWORTH.

Court of Civil Appeals of Texas.

December 20, 1893.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by Tom Farnsworth against William Simmang on a promissory note. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Otto Staffel and L. N. Walthall, for appellant. T. F. Shields, for appellee.

FLY, J.

Appellee, who was plaintiff below, sued appellant on a note for $200, signed by him and one John Cavanaugh. Appellant answered that he had signed the note as a surety some time after the consideration had passed between appellee and Cavanaugh, and that there was no consideration passed to him for signing said note. The evidence shows that the note was executed on December 19, 1888, and was at that time only signed by Cavanaugh, and, thus signed, was delivered to appellee. Appellant was not present at this time. The note was given for a one-third interest in machinery, the other interests being owned by appellee and one Charles Simmang. Appellant did not sign the note until in January, 1889, after the machinery was in running order. It was handed to appellant by Cavanaugh, who requested him to sign it. There is but one point to consider in order to arrive at a conclusion. If the consideration had not passed between Cavanaugh and Farnsworth at the time that the note was signed by appellant, then the appellant is responsible, and the judgment of the lower court is correct, and should not be disturbed; if, however, the consideration had passed and become executed before the appellant signed the note, then his signing was no part of the inducement to the creation of the original debt as evidenced by the note, and appellant is not responsible. 1 Brandt, Sur. (2d Ed.) p. 20, § 17; Baker v. Wahrmund, 23 S. W. 1023, (decided by this court at this term.) There must be some consideration moving to the principal alone, contemporaneous with or subsequent to the promise of the surety. If, after the original consideration has moved between the principal and creditor, the surety signs upon a new consideration moving from the creditor to the principal, this is sufficient. Also where a promise is made at the time the note is executed by the principal that the name of the surety will be obtained to the note, and the surety afterwards signs the note, the consideration would be legal and valid. But where the consideration between the creditor and principal had passed and become executed before the...