71 Tex. 267 | Tex. | 1888
Appellee brought suit in the justice’s court against the estate of Walz, deceased, of which appellant was administrator. The suit was upon an open account for two hundred and two dollars. A writ of attachment was sued out and levied upon the furniture and household goods belonging
“Boerne, Kendall County, Texas, December 26, 1885.
“I, the undersigned, notify hereby that I will pay on or befiore the first day (1st) of July, 1886, the bill of Dr. Arnold Walz, deceased, ($202) by cash to Mr. C. O. Ebensberger, Boerne. Leo von Brandenstein.”
The goods and furniture were released and delivered to appellant, and the suit in the justice’s court was discontinued by appellee. Appellant failing to pay the sum stated in the instrument, this, suit was brought in November, 1886. The petition sets out, with great particularity, all the facts constituting the consideration for which the note was executed; the indebtedness of Walz in the sum of two hundred and two dollars on open account; the suit in the justice’s court against his estate; the issuance of the writ of attachment, and its levy upon the household goods and furniture. It was not alleged that the account for two hundred and two dollars had been sworn to and presented to the administration for allowance.
Appellant answered by general demurrer, general denial and specially pleaded, under oath, want of consideration. The demurrer was overruled, and the trial was by the court. It appears that the only question inquired into or investigated on the trial was the amount of Walz’s indebtedness to appellee at the time of his death. The trial resulted in a personal judgment against appellant for one hundred and two dollars.
There can be no. doubt that an agreement to forbear to prosecute a suit to enforce a well founded claim in law or equity is a sufficient consideration to support the promissory note of the debtor, or of a third person, where the creditor has, in pursuance of such agreement, actually forborne, (1 Parsons on Contracts, 462 et seq.; 1 Chitty on Contracts, 35 et seq:)
But, in order to give such agreement the effect stated it must be made in respect of a well founded claim, and there
For the error in overruling the demurrer to the petition we are of opinion that the judgment of the court below should be reversed and the cause remanded.
Reversed and remanded.
Opinion adopted June 26, 1888.
Stayton,
Chief Justice.