Garza v. Resendez

POPE, Justice. This is a suit brought by the heirs of Leandro Resendez, a comaker of a promissory note, against J. J. Garza, the other comaker, for recovery of the amount Res-endez paid the holder of the note after maturity. Plaintiff recovered judgment in the trial court on the proposition that, as between the parties, Resendez was an accommodation maker only and as such was entitled to sue the accommodated party on the note. After maturity date, Resendez, the accommodation maker, paid the holder who indorsed the note over to Resendez. The court, as the trier of facts, found upon sufficient evidence, that as between the two makers, Resendez was an accommodation maker. Appellant, Garza, urges that payment extinguished the note and no cause of action was asserted by a suit on the note. We affirm the judgment of the trial court. This case does not concern the rights of a holder against a comaker, but only the rights between an accommodation and an accommodated maker. In such a relationship, the accommodation maker’s right of recourse against the party accommodated is that of a surety against the principal debtor. 11 C.J.S., Bills and Notes, § 750a. Such a surety not only may sue his principal in assumpsit for reimbursement, but he may also prosecute an action on the note itself. Art. 5939, Vernon’s Civ.Stats., § 121; Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679, 77 A.L.R. 663; Durham v. McDowell, Tex.Civ.App., 265 S.W. 425; 77 A.L.R. 663 (Anno.); contra: 11 C.J.S., Bills and Notes, § 750b (2); See Note, 36 A.L.R. 575; 77 A.L.R. 672.