33 Tex. 412 | Tex. | 1870
This suit was brought in the district court on a promissory note given by Arnold & Muckleroy to Bradford for $3550.
At the date of the note, Moore & Walker, attorneys for Bradford, executed to the defendants a collateral contract in the words and figures following
“Received, Nacogdoches, December 18, 1869, of James R. Arnold, the following described notes and claims, vhich are to be collected by us, and the proceeds thereof, when collected, to be applied by us as a credit on said Arnold and Jesse H. Muckelroy’s note, dated December 18, 1880, in favor of Muckelroy & Bradford or order, for three thousand five hundred and fifty dollars, with ten per cent, per annum interest from date till paid; which said note is in our hands for collection, and is not to be sued on unless the following claims cannot be collected, the payment of which said Arnold guarantees, and the commission for collecting the same to be paid us by said Arnold.”
This instrument is followed by a list of notes and receipts for
The suit is abandoned as to defendant Muokleroy, who is in bankruptcy.
Arnold in his pleadings avers a want of diligence on the part of Moore & Walker, and bad faith in not collecting the notes and aooounts, and claims that the contract marked A and set out in this opinion is a bar to this suit. In this view the district court concurred ; which was error. The evidence is conflicting as to the diligence used by Bradford's attorneys, but it appears to be admitted, even by Arnold, that all the claims which are collectable, except one, have been collected, and it is shewn that Arnold refused to execute a bond for costs in an action to collect this claim, and did not order or advise suits to be brought on any of the claims! About $>1000 have been collected and credited on Bradford’s note; the remainder of the notes and claims are unpaid, and it is claimed by the plaintiff are worthless and not collectable.
The contract marked A cannot be construed as a bar to this suit. If Arnold is injured by the breach of the contract, he has his remedy for the damages he has sustained. (2 Parsons on Contracts, 219; 3 M. and W., 210; Don v. Tuttle, 4 Massachusetts; 414; Chandler v. Hancock, 19 Johnson, 129; Berry v. Bates, 2 Blackford, 118; Aloff v. Schumshan, 2 Salk. 573.)
We cannot refrain from the remark, that a little time and industry spent with the elementary authorities, would save many blunders, such as appear in this case.
The judgment is reversed and case remanded.'
Reversed and remanded.
