Bost v. Barringer , 202 S.W. 791 ( 1918 )

It is insisted by appellant that the court erred in not entering judgment in his favor because it is established by the evidence that the cause of action originally instituted in the county court for damages for the breach of the contract was compromised and settled by an accord and satisfaction. And it is believed that the contention should be sustained. For it admittedly appears that there was a mutual agreement made between the appellant and the appellee as a settlement of the lawsuit then pending in the county court. The admitted terms of agreement were that (1) appellant transfer without recourse to appellee a certain note in the principal sum of $80, executed by George Barringer; (2) appellant give and appellee receive credit in the sum of $40.50 on the principal sum of a note on which appellee was surety, and of which the appellant was the holder; and (3) appellant pay the court costs. And the evidence admittedly shows a full, complete, and legal performance by appellant of the things required of him to be done under the terms of the agreement. For the appellant satisfied the court costs and actually indorsed without recourse and delivered to appellee the note of $80 owned and held by appellant against George Barringer. And the agreement in itself that the holder of the note give and the surety receive "credit" on the principal of the note in the sum of $40.50 operates as a release or relinquishment of the payment of the principal amount of the note to the extent of the agreed sum of $40.50. For as the appellant was the holder of the note it was not required, nor legally essential, in order to carry out and perform that term of the agreement to "give credit" in the sum of $40.50 on the principal of the note, that any other act be done. The offset or payment of the $40.50 was legally effective upon the mutual agreement being made that such credit or payment be then allowed. As, for illustration, had the appellant sued for the full amount of the note, the appellee could have predicated a defense against payment of the full amount upon the agreed reduction of the principal amount by the sum of $40.50. The entry of the fact of credit by $40.50 on the note was not essential to the legal effectiveness of the agreement, and the failure to make the memorandum of the fact of credit on the note did not make the terms of agreement legally ineffective. Accepting, as the appellee did, the appellant's promise of allowance of the credit of $40.50 on the note as a settlement of the suit, the agreement was an executed and not an executory one; and the remedy of appellee for the breach thereof is by an action thereon, and not on the original right to damages. Railway Co. v. Harriett, 80 Tex. 73,15 S.W. 556.

The judgment is reversed, and judgment will be here entered in favor of appellant, with costs of appeal and of the trial court.