Hamilton v. Broyhill Furniture Factories

466 S.W.2d 29, 1971 Tex. App. LEXIS 2650

• Court: Court of Appeals of Texas
• Decided: April 8, 1971
• Docket: No. 5003
• Status: Published

Opinion

OPINION

McDONALD, Chief Justice.

This is an appeal by defendants Hamilton and Craig from summary judgment against them in a suit on a note.

Plaintiff Broyhill sued defendants Hamilton and Craig on a promissory note for $11,998.08, payable to plaintiff and signed by defendants. Such note provided for interest and attorney’s fee, and was not paid when due.

Defendants by answer plead there was a failure of consideration for the note.

The trial court granted plaintiff’s motion for summary judgment, and entered judgment for plaintiff against defendants for the amount of the note, interest and attorneys fees.

Defendants appeal on 3 points, contending the trial court erred in granting motion for summary judgment.

The record consists, among other things, of the pleadings, affidavits, admissions of defendants, the note, a letter from Lewis Krodell to plaintiff, depositions of Krodell and defendants, a letter from defendants to plaintiff, and an executed agreement between Krodell and defendants.

It is reflected without dispute in such record that Krodell owed plaintiff $13,331.-20 for furniture purchased from plaintiff; that Krodell by written agreement with defendants transferred to defendants certain properties, including the furniture that Krodell had purchased from plaintiff; that by such agreement between Krodell and defendants, defendants assumed all indebtedness set forth on a list which included plaintiff’s account for $13,331.20; that thereafter defendant Hamilton wrote to plaintiff: “We (Craig and Hamilton) are prepared to assume the amount owing on, your account, but need to make arrangements to include this item in our overall financing” ; sent plaintiff a check for $1,-333.12 to apply on the account; and defendants executed the note here in suit for the balance of $11,998.08; such note was not paid at maturity, and is the note here sued on by plaintiff.

Defendants assert the agreement they had with Krodell was never consummated, hence there was a failure of consideration for the note, as well as for the $1,333.12 payment made by them.

Defendants letter and the note constitutes an original undertaking as between defendants and plaintiff, so that plaintiff’s rights are not dependent on subsequent events or between defendants and Krodell. And in any event the Supreme Court has set this matter t® rest in S & H Supply Co. v. Hamilton et al., Tex., 418 S.W.2d 489. Such case is a suit between other creditors of Krodell whose debt was assumed by defendants herein in the same transaction here involved, and holds that another note executed by defendants to other creditors of Krodell resulting from the transaction between Krodell and defendants, was supported by consideration.

All defendants points are overruled.

Affirmed.

WILSON, J., not participating.