Dittmar v. Myers

39 Tex. 295

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Walker, J.

If the note sued on in this case by A. C. Myers, the appellee, was given for Confederate money, there is no reason in law or fact.why the defense of Con.federate money should be ruled out.

The executrix of the will of E. Abat, by her agreement ■not to litigate this case, could not bind the estate to the ■execution of a Confederate money contract, nor could ;she bind the administrator de bonis non.

Whether the note was given for Confederate money or ■not, is a matter of fact in defense, which may be proved ■under a proper averment.

But it is claimed that E. Abat, by the second clause of Ms will, in which he directs this note to be paid, has so ■ratified and confirmed the contract that the court must carry out its execution. In other words that the will is the law to the executrix, and this clause of the will is perhaps treated as a testament in favor of Vance & Bro., who are the holders of the note sued on.

We do not regard the will in this light. It might be regarded as a subsequent promise to pay a debt, otherwise barred by limitation; but if the original promise was illegal, and not' binding, neither is the subsequent promise or direction.

The will of E. Abat was made on the twenty-sixth day ■of May, 1862, at a time when he ño doubt supposed, if he had borrowed Confederate money of Myers, or contracted a Confederate money debt, that it would be repaid in the same currency; and it is very doubtful whether he would have considered this obligation binding upon his conscience to pay the debt in lawful money of par value, if he had foreseen the results of the civil: war.

We think the assignments for error in this case are-well taken.

The judgment of the District Court is therefore reversed and the cause remanded.

Reversed and remanded.