Tolleson v. McAlister , 33 S.W.2d 573 ( 1930 )

The evidence in this case, without any conflict, shows that appellee in February, 1929, owed appellant two notes, one for $3,750 and another note for $300. At said time the $3,750 note was admittedly barred by our statute of limitation. The $300 note was not barred, but was a legal enforceable obligation against appellee. On or about said date, February, 1929, the parties entered into an oral or verbal contract, by the terms of which appellant agreed to release appellee from the payment of the $300 note, which was not barred, in consideration of appellee's promise or agreement to pay appellant said $3,750 note, which all parties knew was barred. Appellant performed his part of said verbal agreement and did release appellee from the payment of the $300, but appellee refused to perform his part of said verbal contract by paying appellant said $3,750. So appellant filed this suit to recover said amount, not upon the $3,750 note, but solely and alone upon the verbal or parol contract, by the terms of which appellant agreed to and did release appellee from the payment of the $300, and by the terms of which appellee agreed to pay the $3,750. It is thought the question of limitation was not involved in this case. No one contended the $300 was barred, and no one denied the fact that the $3,750 note was barred. Appellant having based his right to recover, not upon the $3,750 note, but upon the parol contract as above set out, appellee's plea of limitation to a suit on the note was inapplicable and stated no defense to appellant's suit based upon said parol contract. There was no contention that the parol contract was barred; in fact, it had been made only a few months prior to the filing of this suit. As I view this case, the only question involved is: Was the parol contract, made the basis of this suit, a legal and binding contract? There is no contention but that the parties were competent to make the contract sued upon. All the evidence without any conflict shows they did make the identical parol contract made the basis of this suit, and the jury so found. That said contract was based upon a sufficient consideration, to wit, the release of appellee from the payment of the $300 note, was shown by all the evidence and was found by the jury. It is thought, clearly, the verbal parol contract sued upon was a legal, binding, enforceable contract, and under the uncontroverted evidence and the findings of the jury, judgment should have been rendered for appellant for the $3,750, with interest, as claimed by appellant. First State Bank v. Bowman (Tex.Civ.App.) 203 S.W. 75; 37 C.J. p. 1123.