291 S.W. 920 | Tex. App. | 1927
This is an action by appellee against Waldemar Klier and W. F. Siggel, based on a promissory note for $1,050. Klier pleaded a discharge in bankruptcy, and the cause was dismissed as to him. Appellant filed an answer to which general and special exceptions were sustained by the court, and judgment was rendered in favor of appellee against appellant, for the amount indicated by the face of the note and interest and attorney's fees, aggregating the sum of $1,457.80, as well as all costs of suit.
The substantial parts of the answer, to which the exceptions were sustained, are as follows:
Appellant alleged that appellee Klier and others were associated as partners under the firm name of Klier; that appellee told appellant that he was a partner in the business; that in January, 1923, the partnership was indebted to the Cain City State Bank, and appellant became a surety on a note to the bank, dated January 28, 1923, in the sum of $1,550, which note was signed by Klier and Lindig as principals; that appellant had no interest in the debt, nor in the partnership, and was not in any manner connected therewith. The note to the bank was discharged by the two parties paying $500, borrowed by them from Albert Maier, and the balance of the $1,550 note was paid by Lindig. Afterwards Lindig represented to appellant that the firm had other debts, and they intended to solicit others to enter the partnership with a capital of $4,000, which would be used to pay partnership debts, including the $1,050 paid by Lindig on the bank debt, and the surplus would be used "as active working capital." Lindig also represented that he would put another $500 into the partnership, and that he needed some kind of receipt that he had paid the $1,050 for the partnership to use in securing new partners, and that the only practicable way to draw the receipt was in the form of a promissory note for $1,050, signed by Klier and appellant, and that said note would not involve appellant, and that he would never be called upon to pay the same, but that the statements were fraudulently made. It is charged that appellee did not keep his promise to procure new partners, nor to pay in the additional $500 to the partnership, but, on the other hand —
"circulated information that said partnership was `going broke,' that plaintiff at no time did have the intention of using this note as a receipt and in the manner by him represented to this defendant."
Appellant pleaded want of consideration.
The note has at all times been in the hands of appellee, and if, as represented, appellant signed it without receiving any consideration and just to accommodate appellee, he should not be required to pay the amount of the note. If appellee, as alleged, made fraudulent promises to appellant with no intention at the time of performing the promises, and appellant was induced by the promises to sign the note, such fraudulent promises would be a defense against the note. King v. Vise (Tex.Com.App.)
Under the allegations appellant had the right to prove he was merely an accommodation maker of the note. As said in the case cited:
"It would be flagrantly contrary to natural justice to permit recovery by, or in behalf of, the accommodated party, and of course the law would not allow that course."
*922The judgment is reversed and the cause remanded.
