McCreary v. Van Hook's Executors

| Tex. App. | Jul 6, 1872

This is an action brought against the executors of Solomon Van Hook's will, to enforce the payment of two promissory notes. The notes were made payable to E. E. Byrd, and are signed by H. C. Moss and Thomas S. Sweatman, the latter as security.

Solomon Van Hook, deceased, it is charged in the petition, was a dormant partner in the firm of H. C. Moss Co.

The appellees demurred and excepted to the plaintiff's petition and amended petition. The exceptions were sustained by the court; the plaintiff refused to amend, and the cause was dismissed.

The plaintiff set out his cause of action in three counts. In the first, he charges that Moss gave the notes to Byrd in consideration of goods purchased on his individual credit; that Sweatman was the authorized agent of Van Hook; and that by contract between Sweatman and Moss, the goods purchased from Byrd were transferred to the firm of H. C. Moss Co., Van Hook being at the same time a member of said firm; and that Byrd assenting to the arrangement, the firm of H. C. Moss Co. assumed to pay the notes.

This count certainly sets forth a good cause of action. There was no want of a good and sufficient consideration for the promise of the firm to pay the debt, nor was it a promise to pay the debt of another, which the law required to be in writing. If Van Hook was a member of the firm, the firm, in consideration of the goods, promised to become paymaster to Byrd; and the transaction was simply in the nature of a novation, H. C. Moss, in consideration of his release from the original debt, giving the firm of H. C. Moss Co. as a new obligor, with Byrd's assent.

In the second count, the plaintiff charges the purchase of the goods and the transfer to H. C. Moss Co. substantially as in the first count, and further avers that Van Hook, acting through his agent, Sweatman, agreed to pay for the goods, and have the amount credited to him on the capital stock of the company, and that Byrd also assented to this agreement. In the third count, it is charged that the original purchase of the goods, though made by Moss, individually, was for the benefit and the use of the firm of H. C. Moss Co., and that the goods were afterwards sold by H. C. Moss Co. for the benefit of all the members of the firm.

The objection urged to the liability of Van Hook's estate sets up the statute of frauds; also, that the contract, as set forth in the first and second counts, is collateral, and that there is no averment of the extinguishment of the original debt by the novation; and also, that a parol contract is set up in opposition to a written one.

To the first ground of objection the case of Lemmon v. Box,20 Tex., 329" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/lemmon-v-box-4889025?utm_source=webapp" opinion_id="4889025">20 Texas, 329 applies. This case is considered and decided in an opinion of great clearness and ability, delivered by Chief Justice Hemphill. The court there hold, that where the promissor intends not merely to pay the debt of another, but his object is to subserve some purpose of his own, his promise does not lie within the statute of frauds, although it may be in form a promise to pay, and its performance may incidentally discharge the liability of another. This language is clear and precise; and although the plaintiff in error, in his very able brief, has cited numerous authorities from the United States and State reports, in support of the same doctrine, the rule is not more concisely or plainly stated in any of them.

It is difficult for us to determine under what precise state of facts the plaintiff would seek to make out his action, but we are of opinion that should he prove the allegations of either count in his petition, in the absence of contradictory evidence he will be entitled to a recovery. The authorities cited in the brief of the appellant need not be cited in this opinion. We need only remark that they fully sustain the view we take of the case.

The court erred in sustaining the exceptions. The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.