89 S.W. 456 | Tex. App. | 1905
This is an action to revive a judgment in favor of appellants rendered in the District Court of San Saba County on November 24, 1900, against appellees for the sum of $329.53, with interest and costs of suit, upon which judgment there had been payments made by appellee Davis at various times, aggregating the sum of $139. No execution having been issued in one year, *295 motion was made to revive the judgment, praying that execution might issue, etc.
Appellee H. S. Davis resisted the motion, and pleaded that he had compromised and settled said judgment with appellants, insofar as he was concerned, by the payment of the sum of $139, which was accepted by appellants in full satisfaction and discharge of said judgment as against appellee Davis.
Appellants pleaded that there was no consideration for such compromise and settlement, in that said judgment was a liquidated demand and the amount due definite and certain, and that the acceptance and payment of a less sum than the full amount due was not binding upon appellants.
The only assignment of error presented by appellants on this appeal is that the court below erred in not rendering judgment for appellants; that under the pleadings and evidence they were entitled to have their judgment revived and their execution for the amount claimed as due upon their judgment, appellee having showed no consideration that entitled him to release from said judgment.
The uncontroverted testimony shows that at the time the judgment of appellants was obtained and since that time and up to the date of the settlement claimed by appellee, appellee was insolvent and owned no property subject to execution, and that appellee sold exempt property in order to obtain the money with which to make said settlement. The court below found that there was a sufficient consideration upon which to base the settlement and release of said judgment as to appellee Davis, and in this we think the court was correct. A consideration is any benefit to the promisor, or any loss, trouble or inconvenience to or charge upon the person to whom the promise is made. (Emerson v. Slator, 22 How., 43, 16 L.Ed., 365.) "Either benefit to the promisor or detriment to the promisee, is sufficient." (Brantly Contracts, 57.) "A consideration emanating from some injury or inconvenience to the one party or from some benefit to the other, is a valuable consideration." (Conover v. Stillwell,
Evidently, in view of the fact that the appellee was insolvent, and owned no property subject to execution, the appellants were benefited by this settlement, as they could not have enforced the collection of any part of their judgment by law. And the fact that appellee sold exempt property in order to raise the money with which to make the settlement caused a loss and injury to him, which he was under no legal obligation to make or suffer. In the case of Shelton v. Jackson, 49 S.W. Rep., 415, the Court of Civil Appeals of the Second District, Judge Hunter delivering the opinion, held that where the debtors were insolvent and the creditor got immediate possession of his money without cost or delay, there was sufficient consideration for the acceptance of a smaller amount than the demand in full settlement of such demand, and the Supreme Court refused a writ of error in that case. In this case there is the additional consideration of the loss *296 or injury to the appellee by reason of his selling exempt property in order to enable him to make the settlement.
There being no error in the judgment of the court below, it is affirmed.
Affirmed.
