Stroop v. McKenzie , 38 Tex. 132 ( 1873 )

Ogden, J.

There is error in the judgment in this cause, which will require a reversal of the same. The note sued on was payable in pine lumber, and the judgment is for dollars, without any proof of the value of the lumber.

It may be true that a note or other obligation, payable in property of any kind, upon default of payment when due, may be collected in dollars; but in order to entitle a party to a moneyed judgment, he must allege and prove, not only a default in payment, according to the terms of the obligation, but also the value of the property promised to be paid or delivered, and in default of such allegation and proof, a judgment for money will be set aside, on an appeal.

We think the court did not err in its rulings upon the plea of suretyship. The note sued on is a joint note, and signed by Abernathy, Jenkins and Stroop; upon the face of the note they are all principals, and are equally liable in the first instance as such, and the payee had a right to look to them, and all of them, for the payment of the note. Neither party to that note can escape responsibility as principal, without alleging and proving that the payee or holder thereof had full knowledge of the fact; that he signed the same as security, and not as principal; and that the payee or holder consented to take the note, holding him as security only.

Upon the allegation that Abernathy and Jenkins were insolvent, it was not error in the plaintiff dismissing the suit as to them, not served, and prosecuting his suit to judgment as to the other. But for the error first noticed the judgment is reversed and the cause remanded.

Reversed and remanded.