Wegner Bros. v. E. J. Biering & Co.

Citations

• 65 Tex. 506
• 1886 Tex. LEXIS 698

Syllabus

<p>1. Promissory notes—Promise not to prosecute one charged with crime—Illegal CONSIDERATION—NOTE IN RENEWAL OR SUBSTITUTION OF ONE BASED ON ILLE- , gal consideration is itself invalid—P., being indebted to B. on open account, gave him his note for $350 in settlement. About the same time B., claiming to have lost divers of his goods, the value of which he estimated at $1,000, accused P. of having stolen them. P. finally admitted the theft, and executed to B. his promissory note for $1,000, payable in twenty equal monthly installments, with W. as indorser or surety. P. was, shortly afterwards, indicted for the offense, whereupon he fled the country, leaving behind his interest in a retail grocery, worth about $1,250. Subsequently,W., to secure himself against loss, procured from B. the $350 note and the $1,000 note, upon the latter of which P. had, in the meantime, paid the first installment, by giving in exchange ■ therefor his own note for $1,300, payable to B. four months after its date. Upon the notes thus obtained fronrB., W. instituted attachment proceedings against P.’s interest in the grocery, which was eventually sold under the attachment, and the entire net proceeds ($725) applied to the satisfaction of the judgment in favor of W. upon the notes. In a suit subsequently brought by B. against W. on the $1,300 note, wherein it was pleaded by the latter, and wherein there was evidence tending to prove, that B. had threatened P. with imprisonment and criminal prosecution unless he made good B.’s loss by reason of the theft, and that the $1,000 note, which formed part of the consideration for the note sued on, had been executed by P. and indorsed by W. in consideration of B.’s agreeing to desist from and to suppress any criminal prosecution of P. because of the theft. Held:</p> <p>(1) That if part of the consideration of the $1,000 note was a promise by B. not to prosecute P. for theft, then that note was not a legal demand against W., and, as there was evidence