McNeil v. McCamley

6 Tex. 163

• Court: Texas Supreme Court
• Decided: July 1, 1851
• Status: Published

Opinion

Wheeler. J.

It is evident, as well from the terms of the order as from the testimony of tlie witness, that- it was not given or received as a payment upon tlie note. It in terms recognizes McCamley as the holder of the note, and requests the drawees to pay it and credit the amount on tlie note. The payment of the order was, therefore, by its terms, to be precedent to the contemplated credit upon the note. It was neither paid nor accepted, and nothing can be more perfectly clear than that the giving of it was not a payment, nor was the order evidence of payment.

.An.order on a third party for the payment of money which has not been paid or accepted by the drawee is not a payment or extinguishment of a precedent debt. (15 Johns. R., 224.)

We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment" affirmed.