House v. Faulkner

Citations

• 61 Tex. 308
• 1884 Tex. LEXIS 97

Syllabus

<p>1. Pleading.— See statement of case for facts pleaded which were held sufficient to maintain an action to recover for services rendered.</p> <p>2. Contract. — An instrument of writing was executed by one House for himself and “in behalf of the corporators of the International Kail way Company, in which they promised to deliver to the order of Henry B. Andrews five thousand dollars in bonds, to be issued by the state of Texas in aid of that road; the bonds to be delivered as soon as the first instalment thereof should be issued to the directors of the road by the state.” In a suit against House on the obligation it was alleged that Andrews had delivered and indorsed the instrument to W. A. Baylor for one Crawford, who, it was alleged, had performed the services for the obligors which constituted the consideration for the bonds, and that Saylor had sold and delivered the instrument for Crawford to the plaintiff. In a suit by plaintiff against the company, which pleaded non est factum, and also against House, held:</p> <p>(1) The agreement was not a contract for the sale of bonds, for it bore date two days before the International Railway Company had an existence, and no such contract could be made of a thing having no potential existence.</p> <p>(S) The agreement contained a promise not absolute, but conditional, to deliver a thing which was not in existence, and which could not necessarily, under any facts and laws then existing, nor under any acts which any of the parties to the agreement could possibly perform, ever have an existence.</p> <p>(3j The agreement bears internal evidence, when considered with reference to the. fact that the company whose bonds were to be delivered had no existence, and that the agreement to deliver was not unconditional, that the parties contracted for the delivery of the bonds only in the event they should be issued.</p> <p>(4) Whether the instrument was received as payment for services rendered was a question of fact. If such was t