Ford v. Thomas D. MacKey Co. , 1934 Tex. App. LEXIS 449 ( 1934 )

In this suit appellee, Thomas D. Mackey Company, Inc., sought to recover of E. D. Roberts, Inc., as principal debtor, and Mrs. Julia Ford, independent executrix of the estate of Frank Ford, deceased, as guarantor, the sum of $600, together with interest, which was the balance alleged to be due by E. D. Roberts, Inc., to appellee, and of which balance the estate of Frank Ford, deceased, was alleged to be guarantor.

The trial was had before the judge of the county court at law No. 2, of Bexar county, Tex., without the intervention of a jury and resulted in judgment in appellee's favor for the sum of $600 and interest, against E. D. Roberts, Inc., and Mrs. Julia Ford, independent executrix of said estate. Mrs. Julia Ford, as such executrix, has perfected this appeal.

Appellant's first proposition is based upon the theory that appellee had canceled the order for shoes which Frank Ford had offered to guaranty, and that the guarantor could not be held liable for a renewal of the order subsequently made. The trial judge found, in effect, that appellee only threatened to cancel the order, but when reminded that there was a contract, proceeded to fill the order and ship the shoes called for in the order. A threat to cancel a guaranteed contract will not release the guarantor. Ulen Securities Co. v. El Paso (Tex.Civ.App.)59 S.W.2d 198; Wonalancet Co. v. Banfield, 116 Conn. 582, 165 A. 785; Restatement, Contracts § 319; American Construction Co. v. Lassig (Tex.Civ.App.) 20 S.W.2d 797.

The findings of fact made by the trial judge are supported by the evidence and such findings uphold the judgment here rendered.

All of appellant's assignments of error will be overruled and the judgment affirmed.