Simmons Hardware Co. v. Adams
Simmons Hardware Co. v. Adams.
Headnotes
Summary
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Opinion of the Court
JENKINS, J.
Appellant brought suit in the justice’s court on a note for 8189.85 executed by appellee and past due. Appel-lee answered that he made an agreement with the agent of appellant, who was thereunto authorized, whereby he was to pay $50 in cash and $50 in 30 days in full settlement of said note, and that he made said cash payment and tendered said $50 within the time agreed upon, and that the appellant refused to receive the same. To this appellant replied that said agent had no author *1197 ity to make such settlement, and that appellant upon hearing of such agreement ■ repudiated the same and so notified appellee; that thereupon, by agreement of the parties hereto, $25 of said $50 paid by appellee was returned to him, and the balance was credited on said note, and that appellee promised to. pay the remainder. Appellee paid $25 into court. Appellant recovered judgment for $50. Upon appeal a similar judgment was rendered in the county court.
[1]
The judgment of the trial court wiil be reversed and here rendered in favor of appellant for $189.85, with interest thereon at the rate of 10 per cent, per annum from June 1, 1909, less a payment of $25 to be credited thereon as of March 6, 1911, for the following reasons:
[1]
The evidence shows that the alleged compromise was made without authority on the part of the agent attempting to make the same.
[2]
(2) An agreement not supported by a consideration cannot be enforced for the reason that it lacks an essential element of a contract. Tooke v. Bonds, 29 Tex. 427 ; Yeary v. Smith, 45 Tex. 72 ; Helms v. Crane, 4 Tex. Civ. App. 90 , 23 S. W. 392 ; Jones v. Risley, 91 Tex. 7 , 32 S. W. 1027 ; Granger R. Ex. v. Anderson, 145 S. W. 262 .
[3]
(3) The payment of the part of a debt which is due and the amount of which is undisputed is not a sufficient, consideration to support a promise to accept the same in. full payment of the debt. In such a case the creditor has done no more than he was already legally bound to do. Bender v. Been, 78 Iowa, 283 , 43 N. W. 216 , 5 L. R. A. 597; Hayes v. Insurance Co., 125 Ill. 626 , 18 N. E. 322 , 1 L. R. A. 303; Bryan v. Brazil, 52 Iowa, 350 , 3 N. W. 120 ; Railroad Co. v. Davis, 35 Kan. 464 , 11 Pac. 421 ; Railroad Co. v. Donoghue, 67 Md. 383 , 10 Atl. 233 , 1 Am. St. Rep. 396 ; Leeson v. Anderson, 99 Mich. 247 , 58 N. W. 72 , 41 Am. St. Rep. 597 ; Day v. Gardner, 42 N. J. Eq. 199, 7 Atl. 365 ; Harrison v. Close, 2 Johns. (N. Y.) 448, 3 Am. Dec. 444 ; Tyler v. Relief Ass’n, 145 Mass. 137 , 13 N. E. 360 .
[4]
(4) The second ground of invalidity of the judgment above set forth has not been assigned, but it is fundamental and apparent of record.
Reversed and rendered.
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