Loving v. Dixon (56 Tex. 75, 1881)

Watts, J. Com. App.

Loving claimed that he signed the note with the understanding and upon the agreement that he was not bound thereby, unless D. P. Terrell would sign the same. This was one of the contested issues in the court below, and much, of the evidence found in the record was addressed to it. In the bill of sale from Hagler & Co. to Dyer, the latter is required to obtain Terrell’s signature to the note, and it is provided that, if Terrell should fail or refuse to sign the note, the bill of sale was to be null and void. It is clearly shown that Loving was in fact surety for Dyer. On the trial there was evidence introduced, without objection, tending to show that subsequent to the execution of the note Loving had promised to pay it, and also evidence tending to show that, at the time such promises were made, Loving did not know but that Terrell had signed the note. As a witness in his own behalf, he testified that, at the time he signed the note, it was understood between him, Dyer and Newberry, that there was to be no trade made unless Terrell would sign the note; and that at the time he promised to pay, he thought Terrell’s signature had been obtained. The court charged the jury as follows: £