Sanders & Crittenden v. Atkinson ex rel. Le Gierse & Co.

Opinion by Walker, A. S., J. § 1325. Settlement of a judgment is a sufficient valid consideration to support a draft or check. The draft was given in satisfaction of a judgment, and by giving it a levy was averted. The execution about to be levied on the drawers of the draft was returned satisfied. This was a good consideration for the check. The subsequent prosecution of error in the cause which had been so satisfied was no defense. It did not avoid the obligation assumed by defendants in drawing the draft. If intended to do so, it has the appearance of a gross breach of duty and approaching fraud. § 1326. A party being the legal owner or holder of a draft is entitled to action and judgment upon it. That plaintiff was the legal owner of the check was sufficient to entitle him to a judgment. This rule is well settled in our courts. It has frequently been held by this court that a debtor cannot resist a suit on a note by the party in possession of it, with the apparent legal right, on the ground that he is not in fact the owner, but that in equity it belongs to some one else. [Rogers v. Bass, 46 Tex. 516; Thompson v. Cartwright, 1 Tex. 87; De Cordova v. Atchison, 13 Tex. 372; Butler v. Robinson, 11 Tex. 142; Wimbish v. Holt, 26 Tex. 673; Zachary v. Gregory, 32 Tex. 452.] Again, in Allen v. Pannell, 50 Tex. 168, in a suit by the payee on a draft drawn for use, etc., it was held, as the payee and legal holder of the draft sued on, the plaintiff was authorized to maintain an action thereon in his own name, whoever may have been the equitable owner. The production of the draft was sufficient evidence to authorize judgment. Lasker & Davis were the real parties, the use of the [775] name of the payee only nominal. Whether Lasker & Davis composed the firm of Le Gierse & Co., or whether surviving partners, was immaterial. The assertion of a right to recover on the check was a ratification of plaintiff’s act in taking it. Irregularities in the judgment in the former suit could avail nothing in defense in this suit. Whether the parties named as beneficiaries were the true members of the firm of Le Gierse & Co., had it been material, should have been contested by plea under ■oath. October 25, 1880. Affirmed.