Dillahunty v. Davis

12 S.W. 55, 74 Tex. 344, 1889 Tex. LEXIS 946

• Court: Texas Supreme Court
• Decided: June 18, 1889
• Docket: No. 6730
• Status: Published

Opinion

Henry, Associate Justice.

Appellee instituted this suit against appellant and two other parties upon their two joint promissory notes, which were set out in liceo verba in plaintiff’s petition.

Defendant Dillahunty answered by general denial, by a plea that he signed the notes only as security for his codefendants and with an express agreement with plaintiff that he (plaintiff) would procure one Warren to sign the notes as surety, and that if he failed so to do that defendant Dillahunty should not be bound as a party to them, and that plaintiff did fail to procure said Warren’s signature to the notes, whereby defendant was discharged from liability. He further pleaded that at the time said notes matured his codefendants, who are the principals in said notes, were solvent, and that plaintiff failed to exercise ordinary diligence to collect them until said principals became insolvent, wherefore he prays to be discharged.

The court properly sustained an exception to the last plea and gave plaintiff judgment for the amount of the notes.

The name of defendant was signed to the notes produced in evidence as follows: To one, H. C. “Dillaunty;” to the" other, H. C. “DillahintyV It is insisted that on account of 'the variance between the notes offered, in evidence and those described in the petition they ought to have been-excluded. We think the notes are within the rule of idem sonans and were properly admitted as evidence.

A number of other errors are assigned but are entirely unsustained by the record.

The judgment is affirmed.

Affirmed.

Delivered June 18, 1889.