Bowdon & Erwin v. Robinson Bros. , 4 Tex. Civ. App. 626 ( 1893 )

GARRETT, Chief Justice.

Bowdon & Erwin, creditors of JamesNummy and five others, instituted this garnishment proceeding against appellees, Robinson Brothers, setting out in their affidavit for garnishment that they had recovered a judgment in the Justice Court, precinct number 1, Anderson County, against the said James Nummy and Claud Busby, John Rogerson, Will Bronson, William Ferrell, and W. A. Roscoe, on the 26th day of August, 1890, for the sum of $175, with 8 per cent interest, and 811.90 costs of suit. The garnishees answered, that as bankers they had in their possession on deposit to the credit of James Nummy the sum of $175. Nummy intervened, and alleged that the judgment-had been discharged as to himself by a special agreement with the plaintiffs, that if he would pay to them $25 they would receive it as his pro rata share of said judgment and release him from all further liability thereon; that he paid plaintiffs said sum of money and took their receipt therefor, showing that he had paid his “ pro rata on mule,” the said judgment being for the value of a mule, for the loss of which plaintiffs had sued the defendants in said judgment; and that it was then and there agreed that in consideration of said sum paid, the said Nummy was released from further liability on said judgment.

The case was tried in the County Court, on appeal from the Justice Court, without a jury, and resulted in a judgment in favor of the intervener, and also discharging the garnishees.

Under the pleading of the intervenor evidence was improperly admitted to show an agreement to release each one of the defendants on the payment by him and by one Stoddard, who had been sued with them and discharged on his plea of infancy, of the sum of $25 each; and the conclusion of the court that there was such an agreement, even if the evi dence had been admissible, is not supported by the evidence. Busby’s evidence was, that Bowdon & Erwin had agreed with all the defendants against whom they had recovered judgment, that they would release them from payment of same if each of them would pay the sum of $25, and not that they would release each one upon the payment bjr him of $25. The evidence relied on to show an agreement in writing to release is the recital in receipts given to some of the defendants who had made payments, to the effect that plaintiffs agreed to give the party making the payment a receipt in full for his pro rata on the payment of $25, and in the case of Rogerson a receipt for $22, reciting that said sum was his pro rata liability on said judgment and cost. These recitals are not inconsistent with an arrangement of the parties between themselves for each to pay his pro rata share of the judgment, including also Stoddard, who was not bound by the judgment. The evidence does not show any agreement on the part of plaintiffs to release each of the parties upon the payment by him of a part of the judgment. »

Delivered November 2, 1893.

Although the judge found the fact as before stated, he did not rest the judgment thereon, because said release had not been pleaded; yet he found that under the facts of the case the defendant was discharged on the payment made by him. In this we think there was error.

Nummy was not released by his payment to plaintiffs of a part of the judgment. It was not shown in the first place that there was any intention to release him, nor in the second place that there was any consideration for such release. A payment of part of a debt is not a discharge of the whole, although it may be accepted as such.

The judgment of the court below will be reversed; and as the facts necessary to the rendition of a judgment here in favor of appellants appear in the record, such judgment will be rendered as ought to have been rendered in the court below.

The statement of facts shows that plaintiffs recovered judgment August 26, 1890, for the sum of $175, to bear interest from said date at the rate of 8 per cent per annum, and costs of suit $11.90; and that said judgment should be credited as follows: January 15, 1891, Busby, $20; January 15, 1891, Rogerson, $22; Stoddard, $10; April 15, Busby, $5; April 17, Roscoe, $5; June 10, Roscoe, $5; June 15, Busby, $5; June 16, Roscoe, $5; March 15, 1892, Nummy, $25.

Judgment will be rendered in favor of appellants against the appellees Robinson Brothers for the balance due on said judgment and the costs in Justice Court, $11.90, added thereto, besides all costs of this proceeding, the whole not to exceed the said sum of $175 in their hands, with an allowance of $5 to said garnishees as compensation for their answer.

Reversed and rendered.