Hueske v. C. E. Broussard & Co.

Citations

• 55 Tex. 201
• 1881 Tex. LEXIS 104

Syllabus

<p>1. Contract — Guaranty—Presumption.—In a suit against one not a party to a promissory note, which bore eight per cent, interest, but who signed the following indorsement thereon: “ Accepted, payable ninety days from January 13, 1870, with interest at ten per cent, per annum,” the petition alleged that the plaintiff, relying on the acceptance and assumption of payment, released the original maker. A general demurrer and special exception, the latter based on the fact that the suit was not brought at the first term of the court, as required by statute in suits against an indorser or guarantor, were overruled. On appeal by defendant, against whom final judgment was rendered, there being no statement of facts or bill of exceptions, held,</p> <p>(1) Whether the contract, evidenced by the indorsement, was collateral or original, was a question of fact for the jury.</p> <p>(2) The true meaning of the indorsement being, from the language used, doubtful, the time of payment being changed and the rate of interest increased, parol evidence would have been admissible to explain whether the intention of the parties was to create an original contract or a guaranty of payment.</p> <p>(3) A liberal interpretation is to be given to commercial contracts.</p> <p>(4) It will be presumed, as against a defendant appealing, with neither a statement of facts nor bill of exceptions, that evidence was introduced to show that the indorsement was not intended as a guaranty, but an original and absolute contract to pay.</p>