Stuart v. Altman

• Decision Date: 21 October 1896
• Citation: 37 S.W. 867
• Parties: STUART v. ALTMAN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

37 S.W. 867

STUART v. ALTMAN.¹

Court of Civil Appeals of Texas.

October 21, 1896.

Appeal from district court, Brewster county; Walter Gillis, Judge.

Action by F. B. Stuart against R. P. Altman. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Millard Patterson, for appellant. J. M. Dean, for appellee.

NEILL, J.

F. B. Stuart and D. W. Stuart, who composed the firm of Stuart Bros., sued J. W. Cooper and R. P. Altman, the appellee, to recover the sum of $1,263.69, which they alleged they paid as sureties on the two promissory notes set out in our conclusions of fact. After the suit was instituted, the death of D. W. Stuart was suggested; and the appellant, who had qualified as his executor, was allowed to prosecute the suit for himself, and as the executor of his testator. J. W. Cooper not having been cited, the cause was, as to him, discontinued. The appellee, Altman, answered: (1) By a general denial. (2) That F. B. and D. W. Stuart were principals, and not sureties, on the notes,—averring that when the notes were executed he, with O. M. Lee, N. A. Tucker, and J. W. Cooper, were being prosecuted in the territory of New Mexico for an offense alleged to have been committed by them; that, while Stuart Bros. were not parties defendant in the prosecution, they were interested in the subject-matter and result of the prosecution, and that they and Stuart Bros. signed the notes as principals, and Reynolds as surety, in part payment of the attorneys retained in defending them in such prosecution; that he, Cooper, Lee, and the Stuart Bros. agreed to pay their pro rata of the expenses incurred in said defense, and that the pro rata share of each of said parties would be about one-fourth of the expenses; that the expenses incurred were $3,500 attorney's fees, and the further sum of $1,500 expended in various and sundry ways connected with the defense of the prosecution, and that, of the attorney's fees, he (Altman) had paid the sum of $900, and of such other expenses the sum of $800; and that Stuart Bros., in paying the sum sued for, had paid no more than they were liable for as their pro rata share. The cause was tried before a jury, and resulted in a verdict for appellee, upon which the judgment appealed from was rendered.

Conclusions of Fact.

On September 20, 1888, a promissory note was executed by the persons whose names are signed thereto, which is in words and figures as follows: "$1,000.00. Las Cruces, New Mexico, September 20, 1888. On or before three months after date, we, or either of us, promise to pay Newcomb & McFiee,...