May v. Waniger

ELY, C. J. This is a suit on a joint and several promissory note for $1,000, payable to appellee, executed by the John Gowdy Manufacturing Company, Harry May, and E. S. Short. Only May was sued, and it was alleged that he had guaranteed the payment of the note by signing a contemporaneous written contract. Appellant answered that he had signed the note as a guarantor with E. L. Short for the John Gowdy Manufacturing Company, that appellee knew that he had signed the note only as a guarantor, and that the People’s Manufacturing Company had .been substituted for the John Gowdy Manufacturing Company, as payor, without the knowledge or consent of appellant. Exceptions were sustained to the answer, and the jury was instructed to find for appellee for $629.42, and interest, being the balance unpaid on the note. [1] Appellant excepted to the action of the court in sustaining the exceptions, and it was not necessary to file a motion for a new trial in order to present error on the action of the trial court on his appeal to this court. Railway v. Beasley (Sup.) 155 S. W. 183; Davis v. Parks, 157 S. W. 449; Stein Tire Co. v. Fulton, 159 S. W. 1013. This is said in view of objections made by appellee to the assignments of errors being considered because no motion for new trial was filed. [2] The note and contract were parts of the same transaction, and clearly indicate that appellant was bound only as a guarantor of the payment of the note. In the contract of guaranty it was recited that it was proposed to change the name of the corporation, and that the liability of the guarantors was not. to be affected thereby; but it is not alleged in the petition that the name of the corporation was changed, but merely that the “People’s Manufacturing Company” was the successor to the John Gowdy Manufacturing Company. It was alleged in the answer that the People’s Company, which was a bankrupt, had been substituted as payor in the note for the John Gowdy Company, which was solvent, and able to pay the note. That allegation presented a good defense. The guarantor can only be held for the debt of his principal, and any release of his principal by substituting another principal, or otherwise, releases the guarantor. *1107 [3] If it did not appear from tlie contract that appellant was merely a guarantor of the payment of the note, he could show it by parol if the fact was known to the payee. Brandt Sure. & Guar. §§ 29, 30; Gardner v. Watson, 76 Tex. 25, 13 S. W. 39; Lemp v. Armengol, 86 Tex. 690, 26 S. W. 941. The judgment is reversed, and the cause remanded.