McDonough v. Tutt

31 Tex. 199

• Court: Texas Supreme Court
• Decided: April 15, 1868
• Status: Published

Opinion

Morrill, O. J.

—Suit by plaintiff in error against the assignor of an account for $456 03 against an estate of a deceased partner, which had been allowed by the administrator of the estate and approved by the chief justice.

The defendant excepted to the sufficiency of the plaintiff’s petition, and the district court sustained the exceptions. Article 222, Paschal’s Digest, provides, that the obligee or assignee of any bond or written instrument may transfer to another by assignment all the interest which he may have in the same * * * , and in order to hold the assignor liable, &c., the assignee shall use due diligence to collect the same.

The instrument sued on was, in its legal effect, an accepted bill at least, or perhaps it would more properly resemble a judgment. But, whatever it may be in some respects, it was a “written instrument,” and such a written instrument as could be transferred to another by assignment, and also such an instrument as would hold the assignor liable as surety for the payment of the same, provided" the assignee should use due diligence to collect it. And there can be no doubt that the indorser considered himself bound as indorser, since in indorsing it he waived the necessity of suit. The judgment is reversed and the cause remanded.

Reversed and remanded.