Simmons Hardware Co. v. Adams

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.