74 S.W. 305 | Tex. | 1903
The following question has been certified for our decision:
"This was an action brought by the appellee in the court below to recover of the appellants as the makers of a certain promissory note a balance due thereon after deducting a credit of more than 33 1-3 per cent received by the appellee, an accepting creditor, from the assignee of Haijek Simecek in a general assignment made by them in accordance with the statute of this State, for the benefit of such of their creditors as would accept the assignment and discharge them from further liability. The assignment was made subsequent to the passage of the National Bankrupt Act of 1898. The appellants, Haijek Simecek, were partners and joined in the assignment which was made by them. They were principals in the note, and the appellant John Haijek was their surety. No steps were ever taken to adjudicate them as bankrupts. The assignment was made more than four months before the bringing of this suit and has been closed, leaving a balance due on the note sued on for which the court below rendered judgment in favor of the appellee. This court being of the opinion that the case of Patty, Joiner Eubank Co. v. Cummins,
"Were the appellants discharged from further liability on the note sued on by the facts stated? Should the judgment in favor of the appellee be affirmed?"
The case of Patty, Joiner Eubank Company v. Cummins,
We did intimate, however, that the effect of the ruling of the Supreme Court of the United States in Boese v. King,
But if it should be held that our statute, in so far as it makes provision for exacting releases, is an insolvent law and therefore suspended by the Bankrupt Act of the United States, it does not determine the question now under consideration. We see no good reason why the assignment made in pursuance of the statute was not good at least as a common law assignment. Nor do we see why, even if not subject to the regulations of the assignment law, the assignee could not take possession of the property, dispose of it, and divide the proceeds among the accepting creditors. Boese v. King, above cited. The assignment would have been annulled by a proceeding in bankruptcy instituted within four months from the time of its execution. But no steps having been taken under the bankrupt act, no good reason suggests itself to our minds why any provision of the instrument valid at *520 common law should not be given effect. That at common law an assignment is valid which provides for a discharge by the accepting creditors, is the opinion expressed by this court in the case of Patty, Joiner Eubank Company v. Cummins, above cited. The grounds for the conclusion are there stated and need not be here repeated. Whether the determination of the point was necessary to the decision of that case, we need not now inquire. We are still of that opinion.
Therefore, we think that the provision of the assignment in this case for a release as to the accepting creditors does not require the aid of the statute to give it effect, and that even if the statute was suspended by the bankrupt law, the creditors who accepted and received under it one-third of the amount of their debts thereby released the remainder.
We answer that the appellants were discharged on the note sued on by reason of the facts stated in the certificate, and that the judgment in favor of appellee should be reversed.