
    OKLAHOMA TOOL & SUPPLY CO. v. DANIELS et al.
    (No. 2642.)
    Court of Civil Appeals of Texas. Amarillo.
    April 27, 1927.
    Rehearing Denied June 15, 1927.
    1. Appeal and error <@=>713(3) — Trial court’s ruling on exceptions to pleadings will not be considered, when alleged error is shown only in bill of exceptions.
    Ruling of trial court on exceptions to pleadings will not be considered, when the error, if any, is not shown by the record, but appears only in bill of exceptions.
    2. Compositions with creditors <@=>26 — In ac- . tion on partnership note, answer alleging plaintiff’s acceptance of composition agreement with purchaser of business held sufficient, as against general demurrer.
    In action to recover balance due on partnership note, answer alleging sale of partnership business to purchaser who assumed partnership liabilities; that subsequently plaintiff and other creditors entered into composition agreement with purchaser, releasing purchaser from all obligations; that any liability of defendant partner was that of surety, which was released by release of principal debtor; and that to permit plaintiff to recover would be fraud on other creditors who entered composition agreement, held sufficient, as against general demurrer.
    
      3. Compositions with creditors <®=»2I — Holder of partnership note entering composition agreement with purchaser of business discharged note in full.
    Where payee of partnership note, who agreed to look first to purchaser of partnership business, subsequently entered into creditors’ composition agreement with purchaser and released it of all liability on balance of debt, finding that note was discharged in full, and that withdrawing partner was not liable thereon as matter of law, held justified, in absence of evidence that other creditors knew of intention by payee to hold withdrawing partner liable for balance of note.
    4. Bills and notes <®=x>485 — Defendant sued on note, not setting up defense of want of, or failure of, consideration, was not required to verify his pleadings.
    In action on note in 'which defendant did not plead want of, or failure of, consideration, but set up defense that' there was composition agreement which discharged note, defendant was not required to verify his pleadings.
    5. Compositions with creditors —Letter from holder of partnership note to creditors’ committee, reciting that it expected, to receive its pro rata share of business, held acceptance of composition agreement.
    Letter from officer of corporate holder of partnership note to creditors’ committee, reciting that, though corporation was unable to be represented at creditors’ meeting, it expected to receive its pro rata share of the proceeds of the business, held an acceptance of composition agreement.
    6. Compositions with creditors <g=»2l— Creditors’ acceptance and cashing of check under composition agreement held to preclude subsequent recovery of balance of debt.
    Accepting and cashing, by payee of partnership note, of check, drawn by committee of creditors of insolvent purchaser of partnership business, under composition agreement, held to preclude it from recovering from any one the balance of note in excess of amount received under composition agreement, in view of notation on check that it constituted full settlement of indebtedness.
    7. Compositions with creditors <§cw2l — Composition with one joint debtor, containing or contemplating release, discharges all jointly liable, in absence of statute or special agreement.
    In absence of statute or special agreement, a composition with one joint debtor which contains or operates as a release, or contemplates that a release shall be given, discharges all who are jointly liable.
    8. Compositions with creditors <g=>!3 — Persons entering composition agreement must exercise utmost good faith toward each other, and none can receive more than others, without their consent.
    Those entering a composition agreement must exercise the utmost good faith toward each other, and, in absence of express stipulation to the contrary, there is in every composition an implied agreement that creditors entering it shall share alike, or on terms and proportions stated therein, and that no one shall receive more than others, without their express assent.
    9.Compositions with creditors <§=v>29(I) — Composition agreement held defense to action for balance on note, notwithstanding defendant’s secret agreement to pay such balance.
    Composition agreement with purchaser of partnership business, made on representation that plaintiff, a holder of partnership note, was settling on same basis as other creditors, was a defense to action on note available to former partner, notwithstanding such former partner had' secretly agreed with plaintiff to pay balance on note.
    Appeal from District Court, Wichita County ; H. R. Wilson, Judge.
    Action by the Oklahoma Tool & Supply Company against C. U. Daniels and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    See, also, 283 S. W. 217; 290 S. W. 727.
    Billingsley & Billingsley and Chas. B. Stewart, all of Fort Worth, for appellant.
    Raymond M. Myers, of Wichita Falls, for appellees.
   HALL, C. J.

The appellant company, a corporation, organized and doing business under the laws of Oklahoma, sued C.' U. Daniels and S. A. Springer in the district court of Wichita county, to recover a balance of $2,-014.79, alleged to be due on a note executed by Daniels and Springer as individuals .and as a partnership.

The substance of the allegations is that on December 14, 1921, the defendants executed and delivered to said company their promissory note in the principal sum of $3,400, payable at Tulsa, Okl., on February 12, 1922, with 8 per cent, interest from date until paid, and 10 per cent, attorney’s fees. The petition admits credits which reduce the amount of the note to $2,014.79, which is claimed to be the sum due on May 12, 1924. It is alleged that Daniels resided in Wichita Falls, Tex., and that Springer is a nonresident of the state.

Daniels answered by general demurrer, and a general denial, and specially alleged that on the 1st day of January, 1922, Wm. O. Coleman purchased the supply business theretofore conducted under the name of Daniels & Springer, and took over all of the assets of said partnership, assuming all liabilities thereof; that plaintiff was duly notified of such change and of the amount of said firm’s assets and was informed that Coleman had assumed the payment of all of said firm’s indebtedness including the amount due plaintiff ; that thereafter Coleman became involved in financial difficulties and called a meeting of all of his creditors to consider a plan for liquidating Ms debts, at which meet-, ing Coleman offered to pay his creditors 50 cents on the dollar, in consideration of a complete release of all their debts against him; that this offer was accepted by all of Coleman’s creditors, who, acting together, entered into a composition, whereby the said Coleman was to be released on the basis of payment of one-half of his indebtedness to each of his creditors; that plaintiff was one of said creditors and accepted said offer and entered into said composition and gave the said Coleman a complete and full release of all indebtedness owing by him, or by the Americán Supply Company, that being the name under which he conducted the business which he had purchased from Daniels & Springer; that the indebtedness sued upon was fully released and discharged, not only by the acceptance of the amount due plaintiff company under the composition agreement, and not only by virtue of the fact that plaintiff had fully released and acknowledged payment of all indebtedness due it, but, further, in virtue of the fact that this defendant Daniels, as retiring partner from the firm, if liable at all, was liable only as a surety who became financially released upon the release of the principal debtor and extinguishment of the debt; that to permit plaintiff to recover in this action would be a fraud upon all the other creditors who entered into the composition agreement with Coleman and a fraud on this defendant; that plaintiff consented to accept payment on a 50 per cent, basis, and did accept the same and thereby induced other creditors to accept on the same basis, without divulging the fact that it expected to get the balance of its indebtedness out of this defendant ; that ■ plaintiff is thereby estopped from asserting any rights or claims against the defendants because said indebtedness has been fully discharged; and he pleads accord and satisfaction, and that the payment by Coleman of 50 cents on the dollar of said indebtedness constitutes a complete satisfaction and extinguishment of the claim sued upon.

By first supplemental petition, plaintiff demurred generally to the answer and urged 14 special exceptions to it.

The case was tried to the court without a jury and resulted in a judgment against the appellant. From this judgment, an appeal was prosecuted to this court, where the judgment was affirmed. On writ of error to the Supreme Court, the judgment was reversed, and the case is before us for hearing upon the merits.

The first two propositions raised the issue of the sufficiency of the answer as against a general demurrer, and the sufficiency of the evidence to sustain the facts pleaded in the answer.

By the third proposition it is insisted that the trial court erred in overruling the plaintiff’s special exception No. 1 to the defendants’ original answer, because the same was not sworn to as required by law. The original answer was filed May 26, 1924. The amendment was filed December 15, 1924, and the supplemental petition was filed January 10, 1925. We presume, therefore, that the exception, the overruling of which is complained of, was urged against defendants’ amended original answer, instead of against the original answer. Be this as it may, the proposition cannot be considered, because the record contains no order disposing of the special exceptions, and the point is presented here only by a bill of exceptions.

It is uniformly held that the action of the court in passing upon exceptions to pleadings will not be considered when the error, if any, is not shown by the record, but appears only in a bill of exceptions. Dobson v. Zimmerman, 55 Tex. Civ. App. 394, 118 S. W. 236; Ilseng v. Carter (Tex. Civ. App.) 158 S. W. 1163; First National Bank v. Herrell (Tex. Civ. App.) 190 S. W. 797; Carvel v. Kusel (Tex. Civ. App.) 205 S. W. 941.

Although there are several other bills of exception in the record, taken to the court’s action in overruling other special exceptions, there are no propositions in the brief relating to such matters. However, appellant challenges the court’s action in argument under other propositions, but these cannot, for the reasons stated, be considered.

Appellee urges numerous objections to appellant’s brief to the effect that several propositions are multifarious and not germane to the assignments, all of which we think should be sustained, but there remains enough propositions to present the material issues urged on the appeal, and these will be considered.

We think the amended original answer is good as against a general demurrer.

The second proposition, in effect, challenges the sufficiency of the evidence to support the judgment.

The substance of the court’s findings bearing upon the propositions to be considered may be briefly stated as follows: That the debt sued on was contracted by the firm of Daniels & Springer; that subsequently Daniels sold his interest in the partnership business to Coleman, under which the business was continued for a while, and, finally, Springer withdrew from the firm, leaving Coleman the sole owner and proprietor, the name of the business being then changed to the American Supply Company; that at the time Daniels withdrew from the firm, Coleman & Springer assumed all of the obligations and indebtedness of the original firm, including the note herein sued on, and the plaintiff was duly notified of these facts; that plaintiff then advised Daniels that it would continue to look to him and Springer for the payment of said note, but would first try to collect it from the original firm; that about September 8, 1922, Coleman, then the sole proprietor of tlie American Supply Company, became financially involved, and called a meeting of all bis creditors. He offered to pay them 50 cents on tbe dollar for all indebtedness due them respectively, and all creditors, including tbe plaintiff, accepted tbis offer, and, entered into a composition agreement, and plaintiff placed its entire claim, amounting to $2,900, into said composition settlement, and agreed to receive and did receive one-half of said amount, and executed to Coleman, or tbe American Supply Company, a release, acknowledging full settlement of all of- tbe indebtedness owed by tbe said Coleman, or tbe American Supply Company; that Daniels was also a creditor and accepted under tbe composition agreement, and received 50 per cent, of tbe indebtedness due bim from Coleman, and the, American Supply Company, and executed a release in full of bis debt; that there is no evidence that any creditors knew of any intention on tbe part of plaintiff to bold tbe defendants Daniels liable for tbe balance of tbe indebtedness claimed by plaintiff in tbe composition settlement; that plaintiff, by going into tbe composition agreement and accepting its share, in effect represented, and did represent to all of tbe other creditors, that it was settling on tbe same basis as all other creditors; that at least a portion of tbe creditors were influenced by tbe appearance of equality assumed by tbe plaintiff; that there is no evidence of any agreement on tbe part of defendant Daniels, under tbe composition settlement, to pay tbe balance of tbe note sued on.

Tbe court concluded, as a matter of law, that the note was discharged in full and that to bold Daniels liable for tbe balance due on tbe note would constitute a fraud on all of tbe other creditors, including tbe defendant Daniels.

Springer did not answer, and tbe cause of action was dismissed as to bim.

We think tbe evidence is sufficient to sustain tbe court’s findings, conclusions, and judgment.

Daniels did not plead want of, or failure of, consideration, and it was not necessary for bim to verify bis pleadings. His defense is that there was a composition entered into by Coleman with bis creditors. He further specifically denies that be agreed to pay appellant any balance that remained after tbe application of tbe 50 per cent, payment to be made by Coleman, and then alleges that any such agreement, if made, was fraudulent and void in law.

Tbe evidence does not show1 any such agreement and E. E. Savage, secretary treasurer of appellant, and tbe only witness who testified for appellant at tbe trial, did not so testify. He admitted that bis company received a full statement of tbe proceedings of the meeting of Coleman’s creditors from tbe committee appointed by tbe creditors, in which statement be was notified that Coleman’s proposition to settle with bis creditors for 50 cents on tbe dollar bad been accepted by all of tbe creditors present, and in tbis letter of notification bis company was requested to advise tbe committee of creditors-whether it would accept. He replied to that communication in due time by letter, which is, in part, as follows:

“We were unable to be represented at this creditors’ meeting; therefore whatever was decided upon will, no doubt, be handled accordingly, and we shall accept our pro rata of the proceeds of the business. Our claim is approximately $2,900. No doubt, you have the correct figures. Any correspondence relative to this matter will be given prompt attention, and we hope to bear from you further at an early date.”

Tbe statement that appellant expected to receive its pro rata of tbe proceeds of tbe business is, we think, an acceptance under tbe composition agreement, and tbe intention

, to accept is confirmed by tbe fact that tbe amount of appellant’s claim was taken into consideration at tbe creditors’ meeting, with tbe consent of appellant. Tbis witness also further admitted that bis company bad received and cashed a check in its favor, drawn upon tbe First National Bank of Pauls Valley, by tbe committee of creditors. Tbe check introduced in evidence bears tbis notation upon the top:

“Acceptance of this check together with payment of notes at maturity, delivered contemporaneously herewith, shall constitute full settlement for all indebtedness owing by Wru. O-Coleman, or the American Supply Company.”

Appellant has never offered to refund any part of tbe amount received from tbe committee of creditors under tbe composition-agreement. Accepting and retaining tbe check under these circumstances, and in view of tbe notation made thereon, prevents appellant from recovering from any one tbe balance claimed to be due upon tbe note. Willis v. City National Bank of Galveston (Tex. Civ. App.) 280 S. W. 270; Early-Foster Co. v. W. F. Klump & Co. (Tex. Civ. App.) 229 S. W. 1015, 1018.

“In tbe absence of a statute or special agreement, a composition with one joint debt- or which contains or operates as a release, or contemplates that a release shall be given, discharges all those who are jointly liable with bim.” 12 C. J. 271.

“Tbe policy of tbe law demands of those, who enter into a composition that they shall exercise tbe utmost good faith toward each other, and, in tbe absence of an express stipulation to tbe contrary, there is in every composition an implied agreement that tbe creditors who enter into it shall share alike, or on tbe terms and in tbe exact proportions stated in tbe composition itself, and that no one shall receive more than the others, without the assent of the others or more than the latter have expressly assented to. The bane of the transaction lies in the giving of the preference without the knowledge or consent of the other creditors, and when that exists, whatever may be its form, it renders the agreement for preference illegal and void.” 12 C. J. 287.

The record discloses that all of the ■creditors, including Daniels, have accepted under the composition with Coleman, and even if it were shown that Daniels had secretly agreed' with appellant to pay the balance, he is not precluded by the agreement from pleading it as a defense in this action. Gourley v. Tyler (Tex. App.) 15 S. W. 731; Willis v. Morris, 63 Tex. 458, 51 Am. Kep. 665; Petrolia Supply Co. v. Walker et al. (Tex. Civ. App.) 261 S. W. 498.

In view of this holding, it becomes an immaterial inquiry whether Daniels was liable as a principal or a surety upon the note after Coleman had purchased the firm’s business and assumed payment of it. So that question will not be discussed.

We find no reversible error, and the judgment is affirmed. 
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