Walker v. Phillips

Citations

• 35 Tex. 784

Syllabus

<p>Suit by indorsee was brought against maker of the following instrument r ‘11 promise to pay M. §173 when I collect a note received from him on T.” The petition averred that the contingency mentioned in the instrument had happened. Defendant answered that at the date of the instrument sued on, IT., the payee, was indebted to him, and indorsed to him the note on T., which was for an amount greater than the debt, and the instrument sued on was executed by defendant for the excess ; that only one-third of the note on T. had yet been collected ; that M., the plaintiff's assignor, was a guarantor of the note on T., and if he, M., had taken up that note by a payment of less than its amount, he had done so in fraud of defendant’srigkts, etc. But the proof showed that prior to M.’s indorsement to plaintiff of the instrument sued on, the defendant transferred the note on T. to another person, who sued T. as maker and M. as indorser of it, and that M. had compromised the suit and had taken up the note by paying the defendant’s assignee about one-third of its amount. Held, that the defendant’s transfer of the note on T., and M.’s adjustment of that note with the owner of it, constituted such an occurrence of the contingency specified in the instrument sued on as to make the latter due and payable according to its terms and import.</p>