The appellant, George Beals, has appealed from and has assigned error to that part of the judgment rendered in favor of W. E. Edwards on his cross-plea reading:
"Against George Beals and John W. Hicks, jointly and severally, for whatever amount he (W. E. Edwards) is compelled to pay on this judgment."
"This judgment" refers to the judgment which the Southern Furniture Company was allowed against W. E. Edwards for the *Page 649 amount of the principal, interest, and attorney's fees of the $1,625 note, with a foreclosure of the vendor's lien on the land. The point made on appeal by the appellant is, in effect, that the above judgment against him is not warranted by the law and the evidence.
It appears that, on April 29, 1919, John W. Hicks by deed conveyed a half undivided interest in the land to George Beals, and that George Beals assumed to pay onehalf of the prior existing $1,625 note as a part of the price of the land. It further appears, however, that appellee Edwards was not the payee or owner or holder of the $1,625 note, either at the date of that deed or at the trial of this case, and was not a party in any way to the contract of sale or sale between John W. Hicks and George Beals. In these facts the appellee Edwards could not legally recover on the note against George Beals, because the promise of George Beals to pay one-half of the $1,625 note was, in legal effect, an undertaking to pay that much of the purchase price to the owner and holder of that $1,625 note, in order to discharge an incumbrance against the land which he had purchased, and as a part of the consideration. Such promise of George Beals was not an undertaking made by him for the benefit of appellee Edwards, the maker of the note and a debtor to the holder and owner thereof, in the nature of indemnity to him against the indebtedness, nor as his surety. It has been held clearly that the right of action upon the promise of a subsequent purchaser to pay the prior vendor's lien note as a part of the price of the land is in the holder and owner of the vendor's lien note, accepting the promise of such subsequent purchaser. Hill v. Hoeldtke, 104 Tex. 594, 142 S.W. 871, 40 L.R.A. (N. S.) 672; Spann v. Cochran Ewing, 63 Tex. 240; Beitel v. Dobbin (Tex.Civ.App.) 44 S.W. 299; Hill v. Hoeldtke, 54 Tex. Civ. App. 201,117 S.W. 217.
And, as the record further appears, appellee could not recover on the note even should he have been a prior holder of the note, because he did not accept Beal's promised assumption of the note at any time, especially before the reconveyance of Beals to John W. Hicks, which reconveyance operated, and was intended by the parties, to be a revocation of the assumpsit by Beals. Hoeldtke v. Horstman, 61 Tex. Civ. App. 148,128 S.W. 642.
Appellee seems to further rely for judgment against appellant Beals upon the theory that appellant Beals and John W. Hicks were partners in the purchase of the land, and, as partners, induced him to buy the land from Hale and Pittman as their agent and broker, and that he did take title to the land and execute the $1,625 note as the agent and for the benefit of his principals, Beals and Hicks. In this respect John W. Hicks and appellant deny a partnership. Hicks was a traveling salesman for the Southern Furniture Company, and appellant was its manager and treasurer. Hicks wanted to buy the land, and appellant, acting as an officer of the Southern Furniture Company, consented to make advancement of salary or a loan to Hicks to make the first cash payment. Mr. Mahaffey represented them, but he does not testify that a partnership existed. He says, "As to what was the real contract between them (Hicks and Beals) I don't know, I don't pretend to testify to it." The appellee admits that — "all of the negotiations that I had in reference to buying this land were with John W. Hicks, solely and exclusively, but I was receiving somebody else's checks for the money; all of the talk I had was with Mr. Hicks. I never talked to George Beals about it in my life. I never saw George Beals in my life until here the other day, but his name was suggested to me."
The "checks" that he mentions were admittedly checks signed by John W. Hicks and the Southern Furniture Company, by George Beals, treasurer.
The appellee's evidence further shows that, at his own instance, he made the deed in his own name and executed the $1,625 note, and that Beals did not direct nor suggest that it be done that way. The appellee may have, as he says, been "impressed" and "understood" from "the checks" that "the deals originally was to John W. Hicks, George Beals, and the Southern Furniture Company"; but nowhere in the evidence does it appear that George Beals in fact was a partner, at the time, with John W. Hicks, nor that he authorized appellee to act as his broker or agent respecting the land. The record conclusively shows that George Beals, acting only as treasurer and manager of the Southern Furniture Company, signed a check, as advancement of salary or a loan, for the benefit of John W. Hicks, and that such check was used by John W. Hicks in making payment on the land. Considering the whole testimony, and reasonably construing it, it is concluded that a finding of fact is unwarranted that Beals and Hicks were partners in the original purchase of the land, or that Beals had appointed or directed appellee to act as his broker or agent.
The judgment is modified so as to deny appellee W. E. Edwards a recovery against appellant George Beals, and as so modified is then in all things affirmed. The costs of appeal are taxed against the appellee.
Modified and affirmed. *Page 650