Von Brandenstein v. Ebensberger , 71 Tex. 267 ( 1888 )

Acker, Judge.

Appellee brought suit in the justice’s court against the estate of Walz, deceased, of which appellant was administrator. The suit was upon an open account for two hundred and two dollars. A writ of attachment was sued out and levied upon the furniture and household goods belonging to the Walz estate. Walz left a widow surviving him, who was sister-in-law to appellant.. At the time the goods and furniture were seized under the attachment they were stored in a vacant house in the town of Boerne. In consideration that appellant would forbear to further prosecute his suit, and release the furniture and goods from the custody of the officer under the writ of attachment, appellant executed and delivered to appellee the following instrument:

“Boerne, Kendall County, Texas, December 26, 1885.

“I, the undersigned, notify hereby that I will pay on or befiore the first day (1st) of July, 1886, the bill of Dr. Arnold Walz, deceased, ($202) by cash to Mr. C. O. Ebensberger, Boerne. Leo von Brandenstein.”

The goods and furniture were released and delivered to appellant, and the suit in the justice’s court was discontinued by appellee. Appellant failing to pay the sum stated in the instrument, this, suit was brought in November, 1886. The petition sets out, with great particularity, all the facts constituting the consideration for which the note was executed; the indebtedness of Walz in the sum of two hundred and two dollars on open account; the suit in the justice’s court against his estate; the issuance of the writ of attachment, and its levy upon the household goods and furniture. It was not alleged that the account for two hundred and two dollars had been sworn to and presented to the administration for allowance.

Appellant answered by general demurrer, general denial and specially pleaded, under oath, want of consideration. The demurrer was overruled, and the trial was by the court. It appears that the only question inquired into or investigated on the trial was the amount of Walz’s indebtedness to appellee at the time of his death. The trial resulted in a personal judgment against appellant for one hundred and two dollars.

There can be no. doubt that an agreement to forbear to prosecute a suit to enforce a well founded claim in law or equity is a sufficient consideration to support the promissory note of the debtor, or of a third person, where the creditor has, in pursuance of such agreement, actually forborne, (1 Parsons on Contracts, 462 et seq.; 1 Chitty on Contracts, 35 et seq:)

But, in order to give such agreement the effect stated it must be made in respect of a well founded claim, and there must also be some person liable to suit therefor. (Authorities supra.) It appears from the allegations of the petition that the suit that appellee was to forbear to prosecute was brought in a court that did not have jurisdiction of the amount sued for; it was upon a claim that did not appear to have been rejected by the administrator. It is evident from the allegations of the petition that the attachment sued out was levied upon property that was exempt under the laws of this State, and no fact or circumstances is alleged which would relieve the property from the protection of the exemption laws. Ho suit can be maintained on a claim against an intestate estate until after the claim has been properly sworn to and presented to the administrator and by him rejected. It is clear to us, from the allegations of the petition, that appellee had no such claim, or suit pending, as his forbearance to prosecute would constitute sufficient consideration to support the note sued on, and we think the demurrer should have been sustained. If the suit had been brought upon the note as an original obligation, without reciting the consideration for which it-was given, and the facts alleged in the petition had been proven under the plea of want of consideration, the judgment, we think, should have been in favor of appellant.

For the error in overruling the demurrer to the petition we are of opinion that the judgment of the court below should be reversed and the cause remanded.

Reversed and remanded.

Opinion adopted June 26, 1888.

Stayton,

Chief Justice.