Wright v. Farmers' Nat. Bank

• Decision Date: 07 February 1903
• Citation: 72 S.W. 103
• Parties: WRIGHT v. FARMERS' NAT. BANK.
• Court: Texas Court of Appeals

72 S.W. 103

WRIGHT v. FARMERS' NAT. BANK.

Court of Civil Appeals of Texas.

February 7, 1903.

Appeal from Clay county court; H. A. Allen, Judge.

Action by the Farmers' National Bank against G. C. Wright. Judgment for plaintiff, and defendant appeals. Reversed.

L. C. Barrett, for appellant. R. E. Taylor, for appellee.

CONNER, C. J.

Appellee, who was plaintiff below, instituted this suit in the county court of Clay county to recover $320.41, because of a payment of that sum in satisfaction of a judgment and execution against appellant, and which it was alleged appellant subsequently promised to pay. The petition, charge of the court, and trial, all evidently were predicated upon the theory of the subsequent promise. Hence the exceptions to the petition, and to the charge of the court, and to the refusal of special charges based upon appellant's theory that the payment was voluntary, seem immaterial. Voluntary though appellee's payment may have been, if, as alleged and proven, the judgment was thereby wholly discharged, appellant's resultant benefit constituted a sufficient consideration for a subsequent promise to repay appellee the amount paid in satisfaction of the judgment. 1 Parsons on Contracts (8th Ed.) p. 473; Tiedeman on Commercial Paper, sec. 162.

One defect fatal to appellee's recovery, however, appears as assigned in both allegation and proof. It is alleged: "* * * That, after plaintiff had paid said amount of $320.41 for defendant, said plaintiff, through its president, called upon said defendant to pay said debt, and that defendant thereupon told this plaintiff that he could not pay said debt at that time, but would pay the same as soon as he could; that said defendant did at divers times and places agree with this plaintiff, by and through its officers and attorneys, to pay said amount; that, by reason of said promises and agreement to pay said sum of $320.41, this defendant became liable to, and promised to, pay said plaintiff said amount," etc. Construing the petition most strongly against the pleader, this can amount to no more than a conditional promise of repayment on appellant's part,—a promise to pay "as soon as he could." No subsequent ability of appellant to pay is alleged. The only testimony on the subject is that of appellant himself, who was sworn as a witness for appellee. Appellant testified: "* * * Yes; it is a fact that you [R. E. Taylor], as the attorney for the bank, called upon me some time after the 12th day of ...