94 S.W. 136 | Tex. App. | 1906
This suit originated in the Justice's Court. It was brought by W. R. Powers against John Harris on a promissory note made by the latter to the former for $181.37. A mortgage lien on certain property given to secure the note was also sought to be foreclosed; and to that end the property was seized by a writ of sequestration. It was replevied by defendant. The trial in the Justice's Court resulted in a judgment in favor of plaintiff against defendant and the sureties on his replevy bond. Upon appeal to the County Court judgment was for the defendant.
It appears from the evidence that the note and mortgage were given in settlement of an account plaintiff claimed was due him by defendant; but at the time they were executed, defendant claimed that he did not owe plaintiff as much as the note called for. The defendant's contention was, that he only owed about $35 of the amount and that the balance was the debt of his two married daughters.
This being the contention between the parties, after the note and mortgage were executed, on the 8th of October, 1903, they met in Seguin for the purpose of settling the matter, and it was agreed between them that defendant was only bound to pay on the note and mortgage the sum of $35, which sum plaintiff agreed to accept in full satisfaction and discharge of his demand against defendant on said note and mortgage. And in pursuance of the agreement the sum of $35 was paid plaintiff by defendant's agent.
The question raised by the assignments of error is, did the allegation and proof of these facts constitute a defense to plaintiff's action?
It is undoubtedly the general rule, that a part payment of a bill or note which has fallen due only extinguishes it protanto, and an agreement that it shall be in full discharge of the debt does not make such part payment any more effectual as to the residue, there being no sufficient consideration for the discharge of the whole. But if the claim evidenced by the bill or note is disputed, an agreement, by way of compromise, to receive a part payment in full settlement will discharge it.
The facts in this case bring it within this exception to the general rule. Therefore the judgment is affirmed.
Affirmed.
