Frank v. Kaigler

36 Tex. 305 | Tex. | 1872

Walker, J.

This suit is brought upon an instrument in writing in these words:

“ On demand I promise to pay W. Gr. Kelley or order the “ sum of five hundred and twenty-five dollars in horse property, “ for value received, January 7th, 1861.

“ James K. Kaigler.”

The petition alleges that four hundred dollars of this note were transferred by the payee to A. P. Luekett, by him to B. H. Luekett, and by B. H. Luekett to plaintiff’s intestate. By an amended petition plaintiff alleged that he was the legal owner and holder of the obligation sued on.

To the petition and amended petition defendant filed a general demurrer and a plea of general denial. Upon the trial the demurrer was sustained by the court, and judgment rendered dismissing the case from the docket, and against plaintiff for costs.

Plaintiff moved for a new trial, which was refused; and he gave notice of appeal, and assigns as one cause of error the sustaining of the demurrer. A party who sues in the name of another for his own use, when he might have sued in his own name, may amend and proceed in his own name. (Heard v. Lockett, 20 Texas, 162; Barnett v. Logue’s Adm’rs, 29 Texas, 282.) Although the bearer or indorsee of a note has the legal title to it, he may maintain a suit in his own name; yet if he holds it without consideration and in trust for the payees, the maker is entitled to any defense against the note which he could make against the payees if they were plaintiffs.

But the indorsement in this case was for a part only of the note sued on. Such an indorsement cannot be made, and was absolutely void. (Edwards on Bills, p. 279; Parsons on Contracts, pages 205 and 218.)

The judgment of the District Court is affirmed.

Affirmed.