Opinion
No. 3795.
January 16, 1930.
Error from Hunt County Court; T. J. O'Neal, Judge.
Action by R. F. Drake against Alfred Harris and others, begun in justice court and appealed to the county court. From an adverse judgment, plaintiff brings error. Reformed, and, as reformed, affirmed.
The suit was by R. F. Drake, as plaintiff, against Alfred Harris, Geo. Treadway, and G. W. Sockwell, as defendants. It was for the amount of a promissory note dated November 17, 1925, made by said Harris, Treadway, and Sockwell, whereby they undertook to pay to Drake's order October 30, 1926, $130, interest, and attorney's fees. The trial in the justice court, where the suit was commenced, resulted in a judgment in Drake's favor against Harris, Treadway, and Sockwell for two-thirds of the amount of the note. Treadwell and Sockwell prosecuted an appeal to the county court, where the judgment was that Drake take nothing as against them, but that he recover $138.10 of Harris. Thereupon Drake prosecuted this appeal.
The note sued on was admitted as evidence at the trial. Neither Harris, Treadway, nor Sockwell denied making it, but in their answer they insisted it had been paid by "general farm work" Harris did for Drake; and Treadway and Sockwell insisted, further, that they executed the note "purely as an accommodation" and without consideration, and for that reason were not liable thereon. Treadway as a witness testified that Drake asked him to sign the note, stating that Harris was working for him and that he would collect the note out of his work, and that he (Treadway) would not have to pay it. Drake told him, Treadway said "that he (quoting) wanted my name on the note so that if the negro (Harris) died it would be better security, but that I would never have to pay the note. I would not have signed it except for that statement." Sockwell as a witness testified that Drake told him "that the negro (quoting) was in some kind of trouble and needed the money; that the negro was going to work for him and would work the debt out, and that he, Sockwell, would not have to pay it." Harris as a witness testified that he told Treadway he was working or going to work for Drake, and did work some for him after the note was executed; that he owed Drake for supplies; that he worked for Drake "about $35 or $40 worth over and above the supplies after he gave him the note." Drake as a witness testified that the note was for money Harris already owed him and money he loaned Harris at the time it was executed; that he "never talked to George Treadway at all about his signing the note; did not tell him (quoting) that I would let the negro work it out that he (Treadway) need not pay it;" and, further, that he did not tell Sockwell that "he would never (quoting) have to pay the note."
The judgment appealed from was predicated on findings of a jury, on the evidence referred to, in response to special issues submitted to them (1) that Drake told Treadway that if he (Treadway) "signed (quoting) the note sued on herein he would work the negro to pay the note and Treadway would not have to pay it"; (2) that Treadway signed the note relying on said statement by Drake; (3) that Drake told Sockwell "he wanted him to sign the note so he could get his money, or a part thereof, in case the negro died"; (4) that Sockwell signed the note "relying on such statement"; and (5) that the work done by Harris for Drake was worth $35, and was not sufficient to pay the note.
H. L. Carpenter, of Greenville, for plaintiff in error.
Bowman Bowman, of Greenville, for defendants in error.
It is apparent from the foregoing statement that, if the judgment was warranted, it was because it appeared the note was without a consideration to support it; and we think it is also apparent from said statement that the note was supported by a sufficient consideration, to wit, the consideration moving from Drake to Harris. It sufficiently appeared that Treadway and Sockwell were, as they claimed to be, accommodation makers of the note, but the accommodated party was Harris, not Drake, and no consideration moving to them from Drake was necessary as a support for their promise. Article 5933, R.S. 1925; 3 R.C.L. 927; 8 C.J. 255; Magill v. McCamley (Tex.Civ.App.) 182 S.W. 22. At the place cited in Ruling Case Law it is said: "To fasten liability upon an accommodation indorser it is not necessary that any consideration should move directly to him. The contract of such endorsement is supported by the consideration moving to the payee from the person to whom he negotiates the instrument. Nor is any consideration moving to the accommodation maker necessary to uphold an accommodation note; the consideration which supports the promise of the accommodation maker is that parted with by the person taking the note and received by the person accommodated."
The finding of the jury that Drake told Treadway that, if he signed the note, he would not have to pay it, was predicated on testimony erroneously admitted over Drake's objection, and because, without pleading to support it, the finding should not have been treated as a sufficient basis for the judgment.
Because the judgment should have been in Drake's favor against Treadway and Sockwell as well as against Harris, it will be so reformed as to adjudge a recovery against them also, and, as so reformed, will be affirmed.