Wade v. Wade

36 Tex. 529 | Tex. | 1872

Walker, J.

This action was brought in the court below by the widow of David Wade, deceased, to recover against the plaintiff in error, who is the executor of the will of David Wade, as the indorser of certain notes made by C. Clark and Margaret Clark, and delivered to David Wade in his lifetime. Mary IT. Wade is the widow; of David Wade by a second marriage. Wm. W. Wade is the son by a former marriage. .

The indorsement of the notes was in pursuance of a contract made between the parties on the 21st day of August, 1861, and this contract fully explains the object and purpose of the indorsement, "without resorting to the parol evidence of the attorneys Webb and Lindsay, "who witnessed the agreement.

There is nothing in the agreement which binds the plaintiff in error to indorse or guarantee the payment of the notes; he simply covenanted to transfer the property in the notes, and the right to them, to the defendant in error.

The notes were parts of the assets of the estate of David Wade, and without the transfer by the executor, Mrs. Wade could not have brought suit upon them. From the contract itself, it is plain that Mrs. Wade, on receiving the notes, and contemporaneously with the indorsement, released all her claim in law and equity against the estate of her deceased husband.

The executor, then, did not make the estate liable by indorsing the notes as he did, adding to his name the words “ Execu- “ tor of D. Wade.” These words, in a proper case, would not exonerate the indorser from personal liability, as they must be treated merely as descriptio persones ; but the contract plainly enough shows that Wm. W. Wade acted in the premises only in his representative capacity.

But we are of opinion that the indorser would be discharged under the circumstances of this case, if the indorsement had been made in the ordinary course of business. Mrs. Wade has not used the diligence required by law, to collect the notes from the makers and to fix the liability of an indorser.

We think, by the judgment of the District Court, the plaintiff in error should have been dismissed with his costs. The judgment is therefore reversed, and the cause remanded.

Reversed and remanded.