Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 157
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1884.] GLASSCOCK v. HAMILTON. 157
Opinion of the court.
Iewitt, Swisher & Co. and John MI. Swisher & Co. had suspended,
B. F. Hammond instituted suit against Swisher to recover trust
funds he had placed in hands of Swisher, and recovered judgment
for $15,000, and caused execution to issue and be levied on said property,
and at the sale became the purchaser of the property; and
afterwards Raymond, in order to secure title to Whitis, under the
conveyance made by him, agreed with Lane that if he would obtain
a transfer of the Hammond judgment and of the title acquired
by Hammond for benefit of Raymond, he furnishing the necessary
money, that he, Raymond, would pay off the amount due by Lane
to the government. In consideration of said promise by Raymond,
Lane procured the transfer of the judgment and title of Hammond
to the property, and the same was received and appropriated by
Raymond & Whitis for benefit of themselves; that by reason of
said promises, and in consideration of said services from Lane, Raymond
became bound to pay said money to United States, and that
Raymond, by reason of these transactions, had not paid any money
to the government by reason of his suretyship. An exhibit is made
of the property received and appropriated by Raymond, and defendants
allege that plaintiff Hamilton was fully advised of these
facts, and say if he ever paid any money, as charged in petition, or
otherwise, he paid same voluntarily, with full knowledge that Raymond
was liable and bound to pay the full sum claimed by United
States government from Lane, and which Lane was justly and legally
liable for, and that he was further advised and informed before paying,
if any he paid; that Raymond was not only liable and bound
to pay same, because of facts herein alleged, but that he, Raymond,
had ample means (property and money) to pay the same. Defendants
again deny their liability to plaintiff for any amount, and aver
that he 6ught not further to have and maintain his action against
them, and conclude to the country, and pray to be discharged with
their costs," etc.
This answer, on exceptions, was stricken out and held for naught,
and exceptions saved by bill of exceptions.
The defense which this answer, in effect, sets up, is that because
of Raymond's obligation and promise made to Lane to pay the debt
due on the bond to the government, a payment made of a portion
of the debt by Hamilton, Raymond's co-surety on the bond, will be
made at his peril unless he shall first see to it that Raymond shall
comply with his collateral obligation to Lane by paying the money
due on the bond to the United States treasury; and that, failing to
pursue such remedy against Raymond, a payment by him, liamilton,
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/179/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .