Garza v. Resendez

Court of Appeals of Texas

Garza v. Resendez

251 S.W.2d 747, 1952 Tex. App. LEXIS 1707

CourtCourt of Appeals of Texas

DecidedSeptember 10, 1952

DocketNo. 12431

StatusPublished

Cited by1 cases

This text of 251 S.W.2d 747 (Garza v. Resendez) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Garza v. Resendez, 251 S.W.2d 747, 1952 Tex. App. LEXIS 1707 (Tex. Ct. App. 1952).

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Opinion

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.

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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.

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Bluebook (online)

251 S.W.2d 747, 1952 Tex. App. LEXIS 1707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garza-v-resendez-texapp-1952.

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