Burnham v. Walker

1 White & W. 511

• Court: Texas Commission of Appeals
• Decided: May 15, 1880
• Docket: No. 762, Op. Book No. 2, p. 55
• Status: Published

Opinion

Opinion by

Walker, R. S., P. J.

§ 899. Demurrer; effect of. A general demurrer goes back to the first error in matter of substance, that would not be cured by verdict, committed by either party. [State v. Williams, 8 Tex. 256.]

§ 900. Composition with creditors; consideration. A compromise settlement with creditors, for amounts less than those due by the debtor to them, is upon sufficient consideration. [2 Par. on Con. 618, and note X; 1 Rawle, 391.]

§ 901. Composition with creditors. When an agreement to accept in discharge of a liquidated debt a sum less than the full amount due forms a part of a composition in which several creditors join, mutually stipulating to withdraw or withhold suits, and that they will release to their common debtor a part of their claims upon payment of a certain other part, the agreement becomes binding between each creditor and the debtor, and it is not necessary to uphold such an agreement that all .the creditors should enter into it. [Lanes v. Squyres, 45 Tex. ; Perkins v. Lockwood, 100 Mass. 249; Eaton v. Lincoln, 13 Mass. 424; Stemman v. Magnus, 11 East, 390; Good v. Cheesman, 2 B. & Ad. 328; Boyd v. Hind, 1 H. & N. 938; Reay v. White, 3 Tyr. 597; 1 C. & M. 748; S. C. Daniels v. Hatch, 21 N. J. L. 391-394; Aiken v. Price, 1 Dudley, 50; 4 Exchequer, 755; 1 Strange, 426; 1 Smith’s Lead. Cas. 443.]

May 15, 1880.

§ 902. Evidence; opinion or belief of witness. It is error to allow a witness, over objections, to state his opinion or belief as to whether or not there was fraud in the transaction which is being investigated. [Purnell v. Gandy, 46 Tex. 190.]

§ 903. New trial on the ground of admission of incompetent testimony. To warrant the granting of a new tidal for the admission of illegal testimony, it must appear that the evidence is clearly inadmissible and goes to the merits, and is not supplied by legal testimony. If the evidence is upon an immaterial point, and could not have misled the jury, or if it is merely cumulative, and there is sufficient evidence without it to support the verdict of the jury, a new trial will not be granted. [Patton v. Gregory, 21 Tex. 513; Smith v. Hughes, 23 Tex. 249; Dignowitty v. Alexander, 25 Tex. Sup. 162; Hunter v. Hubbard, 26 Tex. 537; Dailey v. Starr, 26 Tex. 562; Cooper v. State, 23 Tex. 331; Sacra v. Stewart, 32 Tex. 185.]

Affirmed.