20 Tex. 123 | Tex. | 1857
The judgment complained of by plaintiff in error, Knapp, was rendered by default, against Knapp, Lewis and McNeese, in favor of defendant in error, Mills. The suit was brought on an instrument in writing, signed by them, in the nature of a note and mortgage, given for the purchase money of some slaves sold by Mills as administrator, and bought by Knapp.
The judgment rendered on this instrument in pursuance to its terms and legal effect, against all the obligors, is not objected to by any of them.
There was a subsequent agreement between Knapp alone and Mills, which was written on the face of the same paper as follows:—■
“For and in consideration that Joseph T. Mills does not and has not sued on the above note at this Term of the Court, I agree to pay 12 per cent, interest on the same from maturity until paid. April 1st, 1856.
(Signed) JOHN G. KNAPP.”
There is no question, as to what effect this agreement might have had upon the liability of Lewis and McNeese, had objection been made by them either in the Court below or in this Court. Knapp alone brings the case here by a writ of error, and objects to the judgment against him on this separate contract. Because 1st. It is a misjoinder of actions. 2d. The contract was usurious and without consideration.
The first point is obviated by the consideration that every suit, when the facts justify it, assumes the shape of a bill in equity, and the Court is not confined to a definite, single judgment, but may adapt its decree to the circumstances of the case. The contract, though separate, grew out of, and was intimately connected with, the original obligation, and, as to Knapp and Mills, became a part of it by way of addition to it; and, to avoid a multiplicity of suits, was properly joined with the original cause of action.
As to the question of usury; the original obligation did not stipulate any rate of interest, and therefore eight per cent, was the rate for which the obligors were liable. But Knapp was the principal in this transaction, who was expected to discharge this obligation, and for a valuable consideration he could, so far as he was concerned, contract to pay a larger rate of interest than his sureties would be liable for. This is just what was done. The judgment is so shaped as to give interest against Knapp both antecedently and prospectively from the date of the judg
It is contended that there was no valuable consideration for this subsequent contract, because the indulgence had already been given before the promise was made. A proper construction of the consideration recited in the contract will lead to a different conclusion. The consideration expressed is not a forbearance to sue from the maturity, of the obligation, 7th March, 1856, until 1st of April afterwards, the date of the new contract; but by not being sued at the first Term he obtained six months’ indulgence between the first and second Courts, during which he could not be compelled by law to pay his debt, and the benefit of that six months’ indulgence, which he afterwards received, was the real consideration, and not, as might at first view appear, the few days between the 7th of March and 1st of April.
This obvious view of the matter renders it unnecessary to discuss the question raised, that the past indulgence would not be a valuable consideration.
We find no error in the judgment of which this party can complain, and therefore it is affirmed.
Judgment affirmed.
