"That on the 17th day of December, 1917, the defendant, M. I. Holland, joined by his wife, sold and conveyed the above-described land to one J. F. Marshall, who paid the entire consideration therefor to the said defendant, who, notwithstanding the fact that he had assumed the payment of said sum of $1,700 and interest to the order of Southern Trust Company, and well knowing that said amount, together with. interest thereon, was the property of and belonged to said Southern Trust Company, or its order, received said sum and converted the same to his own use and benefit, and has ever since refused, and now refuses, to pay the same, or any part thereof, to this plaintiff as transferee of said Southern Trust Company, and plaintiff further shows to the court that said note is past due and is wholly unpaid, and that the said defendant, although having promised and agreed to pay said note, and although frequently requested so to do, has failed and refused, and still fails and refuses, to pay the same, or any part thereof, to plaintiff's damage in principal, interest, and attorney's fees in the sum of $2,150."

WALTHALL, J. U. G. Macaw brought this suit against the Pecos Valley Alfalfa Land & Oil Company, W. R. Lynch, Mrs. Sue Lynch, and J. B. Marshall, the last-named three acting under an agreement and declaration in trust in the name of Pecos Valley Alfalfa Land & Oil Company.

On the 15th day of January, 1921, the Pecos Valley Alfalfa Land & Oil Company

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(248 S.W.)

entered into a written contract with Macaw,, to W. R. Lynch, Mrs. Sue Lynch, and J. B. by the terms of which Macaw was to grub, Marshall, under said contract, alleged a clear, level, and prepare for farming by ir- breach of the contract by the appellant, and rigation, certain lands described therein, and set up a cross-action for damages growing out belonging to said company, and consisting of of the alleged breach of the contract by appelsome 1,500 acres, and located with the ir- lant, pleaded payments additional to those rigation plant thereon, in Loving and Ward allowed, pleaded the making by appellant counties. of said $2,000 note and prayed judgment thereon.

his itemized open account for $4,906.34 was duly verified as provided for under article 3712 of the statute, and that appellees did not file a written denial, under oath, to the effect that such account was not just in whole or in part, therefore, his account should be taken as prima facie evidence of such indebtedness; that appellees should not now be permitted to deny such account or any item therein, their failure to deny under oath being equivalent to a confession of the justness of the account, and that he should have judgment therefor.

A fact found by the jury on sufficient evidence must be considered established. 2. Accord and satisfaction 5 Promise to remedy deficiencies in articles sold or cancel notes given therefor must be supported by consideration.

The above, practically, presents the only 1. Appeal and error 1001 (1)-Fact found real question in the case. Appellant refers by jury on sufficient evidence considered esus to Knowles v. Gary & Burns Co. (Tex. Civ. tablished. App.) 141 S. W. 189, and the case there referred to by the court. Appellant also refers us to Bay Lumber Co. v. Artman & Beuttmer (Tex. Civ. App.) 188 S. W. 279. After a careful examination of the above cases, we have concluded that they do not fit the facts here presented, and for that reason are not in point. It has long since been held that the statute here invoked prescribed a rule of evidence, and in its terms is applicable only to open accounts. For appellant's contention to have application here, the account he sued upon must be an open account. The question presented is: Is appellant's account an open account? In McCamant v. Batsell, 59 Tex. 369, and since followed by all of the courts, the term, "open account," is there fully discussed and defined.

A promise to either remedy deficiencies in articles sold or cancel notes given therefor must be supported by a consideration, like any other accord and satisfaction.

3. Contracts 75(1)—No consideration for promise to do what promisor is already bound to do.

There is no consideration for a promise to do what promisor is already bound to do. 4. Contracts 50-"Consideration" defined.

A consideration is something given in exis the inducement to the contract, and must be change, something mutual, or something which lawful and competent in value to sustain the assumption.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Consideration.]

5. Contracts 50-Consideration may be benefit to promisor or detriment to promisee.

A consideration may be either a benefit to promisor or a detriment or prejudice to prom

isee.

Here the account sued upon is based upon the contract in writing, in which appellees expressly agree to pay $3.50 per day for the labor of appellant single handed, and $7.50 per day for a team and driver, a mere aggregation of items based upon a special contract. In Myers v. Grantham (Tex. Civ. App.) 187 S. W. 532, in which the suit was for labor rendered upon an implied promise to pay onehalf the gross receipts for pasturage received from various persons, for riding the pasture fences, keeping them in repair, caring for the stock pastured and keeping the stock in the pasture, it was held that such obligations did not constitute an open account under the statute as construed by the Supreme Court in McCamant v. Batsell, supra, and Railway v. Daniel, 62 Tex. 70. To the same effect is Ballard v. McMillan, 5 Tex. Civ. App. 679, 25 S. W. 327; Engineers' Petroleum Co. v. Gourley (Tex. Civ. App.) 243 S. W. 595; Bixler v. Dolieve (Tex. Civ. App.) 220 S. W. 148; Wall & Carr v. J. M. Radford Grocery Co. (Tex. Civ. App.) 176 S. W. 785, in which 7. Bills and notes 343-Knowledge that note

it is held that a demand founded upon a definite contract cannot come within the meaning of an open account as used in the statute. The account here sued upon is not an "open account," and the answer defending against same need not be a denial under oath.

Appellant not having obtained a judgment

6. Bills and notes 435-Indorsee's promise to cancel notes, if it could not induce payee to remedy defects in articles for which given, supported by valuable consideration.

Indorsee's promise to cancel notes, if it could not induce payee to remedy defects in articles for which they were given, was supported by a valuable consideration, being reasonably calculated and intended to cause the makers to make no further demands on payee to make such defects good.

was given in consideration of unperformed contract by payee does not affect indorsee's rights, unless he had notice of breach.

Knowledge that notes were given in consideration of an unperformed executory contract by payee, will not deprive indorsee of the character of a holder in due course, unless he had notice of the breach of contract, the presump

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(248 S.W.)

tion being that it would be carried out in good faith.

8. Trial 194(12)-Instruction that indorsee must show performance of conditions in mortgage and sale contract held on weight of evidence.

In an indorsee's action on notes given for articles sold by payee to the makers, an instruction that plaintiff must show performance of all the conditions of the sale contract and a mortgage given to secure the notes held reversible error, as on the weight of the evidence as to whether plaintiff assumed to make good any of the payee's deficiencies.

Company and paid therefor a valuable consideration.

Appellees defended against this suit on the ground that the soda fountain and fixtures as installed were defective in a number of particulars, and was not the character of apparatus bought by them as shown by the sales contract, and also on the ground that appellant's cashier, on November 20, 1914, came to Austin, Tex., where appellees' place of business was located, and examined the soda fountain and fixtures, and entered into an adjustment with Peter Voudouris in reference to the default made by Grossman Company in regard to the fixtures, allowing

Appeal from District Court, Dallas Coun- credits to be made on seven notes held by ty; E. B. Muse, Judge.

appellant at that time because of the failure Action by the Merchants' National Bank of certain fixtures named in the sales conagainst Peter Voudouris and others, copart- tract to be shipped; and also agreed that ners. Judgment for defendants, and plaintiff certain other defects, pointed out to the said cashier, should be remedied by the Grossappeals. Reversed and remanded. man Company and, if not so remedied, that Phillips, Townsend & Porter, of Dallas, the four notes forming the basis of this suit for appellant. should be canceled in satisfaction to appel

Geo. W. Mendell, Jr., of Austin, and Solon lees for said defects. Goode, of Dallas, for appellees.

JONES, C. J. The Merchants' National Bank, as plaintiff below, brought this suit against appellees, Voudouris Bros., as a copartnership composed of Peter Voudouris, Spiros Voudouris, and Nicholas Voudouris, to recover principal, interest, and attorney's fees on four promissory notes, each in the principal sum of $150, of date July 23, 1914, executed by Voudouris Bros., and payable to the order of Grossman Company, a corporation. The notes matured, respectively, on the 1st day of June, July, August, and September, 1915.

That appellant purchased the notes and mortgage previous to the maturity of any of the notes assigned to it, and purchased same without notice of the partial failure of consideration above given, was not controverted by appellees. Their theory of defense seems to have been that appellant, by its purchase of the notes and mortgage, assumed the contract of the Grossman Company and thereby became responsible to appellees for the performance of said contract to the extent, at least, that the apparatus purchased would come up to the specifications of said contract, and also that, having recognized the deficiencies of Grossman Company in reference to the apparatus sold, had, voluntarily and for a consideration, undertaken to make said deficiencies good.

The notes were given in part payment for a soda fountain and fixtures sold by the Grossman Company to appellees, and constituted a part of a series of notes executed On the other hand, appellant asserted that at the time the sale was made, which was it was an innocent purchaser of the notes for the said 23d day of July, 1914. At the time a valuable consideration before maturity the sale was made, appellees executed a writ- and without notice of any of the said deten contract reciting its terms, and in which ficiencies on the part of the Grossman Comwritten contract a mortgage lien was reserv-pany; and, further, that if its cashier made ed by Grossman Company on all the property the promise alleged by appellees, same was to secure the payment of all the notes given. void for want of consideration and constitutAt the time the suit was instituted, all the ed no defense to this suit. notes given, save the four declared on in The case was submitted to the jury on speappellant's petition, had been paid. Appel- cial issues. All these issues were found in lant set out said mortgage in its petition and favor of appellees. These findings are to asked that it be decreed a foreclosure on the effect that appellant's cashier, on Novemall the property mentioned in said sales con- ber 20, 1914, allowed the credits above mentract. The soda fountain and fixtures were tioned on seven of the notes by reason of the shipped to appellees at various times from failure of .Grossman Company to supply and August until in the month of November of install certain of the fixtures embraced in the year 1914. The mortgage was recorded the contract; that at said time the said on September 19, 1914, and the first install- cashier agreed with Voudouris that the dement note became due on November 1, 1914. fects in the soda fountain and mirrors would At least three days prior to the recording of be repaired and fixed according to the conthe mortgage, appellant purchased all the tract, and, if not, that appellant would surnotes given by appellees from the Grossman render and cancel the four notes herein sued

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on; and, further, that this promise was made on the consideration of appellant's failure to comply with its agreement to have Grossman Company repair and cure the defects in the soda fountain and mirrors. Upon these findings, a judgment was entered in favor of appellees and denying appellant any recovery whatever of the subject-matter of this suit.

On its theory of innocent purchaser for value, without notice, and before maturity, appellant requested peremptory instruction for recovery of the principal, interest, and attorney's fees on the four notes, together with foreclosure of its mortgage lien, and the refusal of the court to do this is duly assigned as error.

was reasonably calculated to cause appellees to make no further demands on Grossman Company to make these defects good. Such promise could only have been intended to have effected this very purpose. We therefore hold that such promise by appellant is supported by a valuable consideration and that the court did not err in refusing the requested peremptory instruction.

herein.

"You are further instructed that the burden preponderance of the evidence that all of the of proof is upon the plaintiff to show by a terms and conditions of said contract and mortgage have been performed, either by the plaintiff or by Grossman Company."

Appellant assigns as error the giving of the following requested instruction to the jury: "You are instructed that the purchase of the notes, mortgage, and contract sued on herein by the Merchants' National Bank, the plaintiff herein, from Grossman Company, it was and is incumbent upon the plaintiff to fulfill and perform all the terms and conditions contained in [1-5] Appellant was entitled to this per- said mortgage and contract before said plainemptory instruction unless it foreclosed it-tiff can enforce the payment of the four notes self as to such relief by the action of its and the foreclosure of the mortgage sued on cashier in promising, either to have the Grossman Company remedy the deficiencies in the soda fountain and mirrors, or, in the event of a failure to have this done, to cancel the four notes. The jury having found that this promise was made by the bank through its cashier, on evidence sufficient to support such finding, this court must consid- [7, 8] We think these charges are on the er same as an established fact. The inquiry weight of the evidence and erroneous, By then is narrowed as to whether this promise the purchase of the notes and mortgage, apwas supported by a consideration. Appellant pellant did not assume to carry out the strenuously insists that it is not under the Grossman Company contract. It is true, at well-known rule that, where a creditor agrees the time the notes and mortgage were purto accept less than his matured debt in full chased, the soda fountain had not been inpayment, he may, nevertheless, collect the stalled and Grossman Company had not yet balance, for the reason that the agreement performed its part of the contract. The to take less than was owing him is a com- courts, however, universally hold that knowlpact without consideration. There can be edge that a note was given in consideration no question that a promise of this kind must of an executory agreement or contract of the be supported by a consideration, just as payee, which has not been performed, will much as any other accord and satisfaction, not deprive the indorsee of the character of and, if one party merely agrees to do what a holder in due course, unless he also has he is already bound to do, there is no con- notice of the breach of that agreement or sideration. We do not think this case comes contract. 3 R. C. L. 1067. At the time the within this rule of law. A consideration purchase was made, the evidence is undismay be defined to be something that is giv-puted that appellant had no such notice. en in exchange, something that is mutual, or something which is the inducement to the contract, and it must be a thing which is lawful and competent in value to sustain the assumption. It may be either a benefit to the party promising, or some detriment or prejudice to the party to whom the promise is made. Schultz v. Scott (Tex. Civ. App.) 210 S. W. 830; James v. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743.

[6] The promise of appellant that if it could not induce Grossman Company to remedy the defects in the soda fountain to cancel these four notes as remuneration to appellees for their loss in consequence of the defects

The presumption of law is that the contract would be carried out by Grossman Company in good faith and the consideration undertaken by it be performed as stipulated. It was an issue of fact to be determined by the jury whether appellant, after its purchase, assumed to make good any of Grossman Company's deficiencies, and this very issue was submitted to the jury. These charges are directly on the weight of the evidence as to this issue, and necessitate a reversal of this

case.

For the error in giving the requested instructions as above set out, this case is reversed and remanded.