Richarz v. Wolcken

| Tex. | Jul 1, 1871

Ogden, J.

The appellee instituted suit in the district court against the appellant, and recovered a judgment on the following written instrument:

“ San Antonio, the second of April, 1857.

“ Hereby I promise tp pay the sum of two hundred and fifty dollars to Stephen Wolcken of San Antonio, .on condition that the said Wolcken will settle the law suit, Fr. Oppermann v. H. F. Richarz, to my satisfaction, or in the case that I should obtain a judgment in my favor, which makes me free of" all damages and costs, except them of my defenders; and the above amount shall be paid out of the purchasing money for my house and lot in San Antonio, to be sold by Fr. Oswald or the said St. Wolcken.

(Signed.) “ H. F. Richarz.”

The above contract is neither an instrument under seal, nor a bill of exchange, or a promissory note, negotiable by endorsement or delivery, nor is it admitted in the instrument that it is made for a valuable consideration. , But it is a simple contract to pay a certain sum of money on one of two conditions mentioned. It is not, therefore, such an instrument as would imply a good or valuable consideration, and the party who would enforce the payment of money under it must allege and prove a consideration. One of the conditions specified in the instrument is that Wolcken will settle a certain law suit, then pending in the district court, to the maker’s satisfaction. But the plaintiff below did not allege or prove that he had settled the lawsuit specified as a condition precedent to entitle him to recover, nor does he base his right to recover on that ground. But he alleges that the defendant had obtained a judgment in his favor in the suit specified in the instrument sued on, and that therefore he was entitled to recover. Considering the instrument sued on in the light of the allegations in the plaintiff’s petition, we do not hesitate to declare it »a mere gratuitous promise, without consideration, and therefore void. Had the plaintiff alleged and provep, that the defendant obtained the judgment in the District Court of Bexar county, through his advice, assistance, or money, then, perhaps, he might have claimed, with some show of law and equity, the fulfillment of tf e promise in the instrument under which he claims. But under his allegations and the'proof, he shows a promise unsupported by any consideration whatever, and this court is not inclined to make for a plaintiff, by construction or presumption, a better cause than he has made for himself in his pleadings. On the trial of the cause below, a jury was waived, and the cause submitted to the court, and this court will therefore proceed to render such a judgment as should have been rendered in the district court. The judgment is reversed and the cause dismissed at appellee’s cost.

Reversed and dismissed.