Jones v. Ritter

32 Tex. 717 | Tex. | 1870

Walker, J.

We are of opinion that the court erred in overruling the demurrers in this case.

The plaintiffs in error were the defendants below.

Suit was brought on a promissory note made by Eliza L. Baker for the sum of $424 68, payable to the order of Darling & Merriman, and dated January 1st, A. D. 1861, due six months from date, with ten per cent, interest per annum.

The petition was filed and suit commenced April 30th, 1867'., Mo averment is made in the petition of the insolvency, death or non-residence of the principal at the maturity of the note-. The statement of facts shows that she was living until late in the year 1864, and the defendant, G-. A. Jones, avers in his answer that she was solvent up to the time of her death. The presumption is, she continued so. It is, however, averred in the petition that she was insolvent at the time suit was brought in 1867. The facts are very meagre on this point.

The averment is not sufficient to entitle the plaintiffs to recover; it should allege insolvency at the maturity of the paper. (See Fisher v. Phelps, Dodge & Co., 21 Texas R., 555.)

The petition does not aver the time of the indorsements. (See Hutchins v. Flintage & Ralston, 2 Texas R., 473.)

By the statement of facts, and by the answer of Jones, it appears that he indorsed the note some three months after the execution and delivery to Darling & Merriman. Ho consideration for his subsequent signing or indorsing the note is averred or proven. We must treat him as a guarantor; he can not be treated as a maker, and without a consideration moving to him, his guarantee would be void. (Parsons’ Mercantile Law, p. 66.)

If the principal debtor be solvent when the note falls due, and the proper steps be not taken to collect the debt, and the ■principal afterward becomes insolvent, the guarantor would be discharged at common law. (See Bashford v. Shaw, 4 Ohio R., 263.)

It is said this suit is brought against “ an immediate and a remote indorser,” and can not, therefore, be maintained against the authority of Rhine v. Hart, 27 Texas R., 94.

By a note found in the margin of Paschal’s Digest, credited to Hartley, p. 146, we are led to conclude that this case should not stand as the law. His honor, Justice Moore, who delivered the opinion in the case, says : “ It has been a matter of settled practice with us since the first organization of our judicial system, that a joint action can be maintained against the maker and indorser of a bill of exchange or promissory note. In the present case it is sought to extend this practice so as to include the immediate and remote indorser in the action .against the maker. There does not appear to be any very good reason or principle why it should not be done. It seems, however, to be directly inhibited by the statute. The last clause ,of Art. 89, O. & W. Digest, reads,” etc.

By reference to the note it will be seen that the word "sections ” in Art. 223, Paschal’s Digest, should read “ section,” and the preceding section does not include the instrument here sued on. The case at bar does not require the authority of the case of Rhine v. Hart to bring us to the conclusion that the judgment below is erroneous. Nothing appears in the record giving any satisfactory reason for the suit not being brought at the first term of the court after the maturity of the paper, nor was the suit brought at the second term and a showing made for not bringing it at the first. The judgment of the <court below is reversed and the cause dismissed.

Reversed and dismissed.