The writ of error in this case was granted on an application in which plaintiff in error, W. G. Langley, claims that the' part of the judgment of the district court denying him a recovery against defendant in error, Joe S. Godwin, is erroneous; there being other parts of the judgment not involved in this appeal. The claim is based on the allegation that Godwin had breached an agreement to pay an indebtedness which Langley owed amounting to $1,521.05, and which Langley paid, and for which he sought recovery.
W. G. Langley and H. A. Chamness were partners engaged in the automobile business in the city.of Fort Worth, Tex. On December 8, 1920, Langley sold and transferred his one-half interest in said business to Joe S. Godwin. As part of the consideration for said sale, it was agreed that Godwin and Chamness should pay off and satisfy three certain promissory notes which' were past due, and which Langley and Chamness as partners owed to Mrs. W. J. Rogers, in the total sum of $2,700. Godwin refused to pay this indebtedness, and Chamness and Langley agreed that they would each pay one-half thereof, which they did on October 13, 1921. The only manner in which Chamness could secure any money to comply with his agreement to pay one-half of the indebtedness was to sell his homestead, and it was agreed by Mrs. Rogers’ attorney to accept the deed to his client from Chamness to the homestead in part payment of the indebtedness, which, with interest at that time, amounted to $3,042.10. It was agreed that the value of Chamness’ equity in his homestead, plus $610.78, was equal in value to the indebtedness, and same was paid by Chamness executing a deed to his homestead, by Langley drawing his check in favor of Chamness for $610.78, which was by Chamness immediately indorsed and delivered to said attorney for Mrs. Rogers, and by Langley executing and delivering to Chamness his note for $910.27, which -was subsequently paid. This was the method employed by Chamness and Langley in complying with their agreement that each would pay one-half of the indebtedness.
In the findings of fact, the trial court found that Chamness paid the indebtedness in full, and that Langley did not pay off this indebtedness, or any part thereof, and that for this reason Langley was not entitled to recover from Godwin. The Court of Civil Appeals affirmed the judgment of the trial' court, holding that there was evidence supporting this finding. 264 S. W. 323.
*660We cannot agree with this holding. The evidence is uncontradicted and shows the facts above recited. In order to effect a settlement of one-half of the indebtedness, Langley drew his cheek for $610.78, which it was intended should be, and which was, applied to the payment of this debt, and also executed his note for $910.27 to Ohamness, which he subsequently paid. By this method Langley paid one-half, and Ohamness one-half, of the debt. It is true other methods could have been used to have effected the same result. Ohamness had only his equity in his homestead with which to pay one-half of the indebtedness. He might have conveyed his homestead to Langley under an agreement that Langley execute to him the note for $910.27, and convey the homestead to Mrs. Rogers, paying her $610.78. This would have settled the indebtedness, and each' would have paid one-half of same. Or he might have conveyed it to some person not inter-' ested in the settlement, for the same agreed consideration, and paid his one-half in cash, loaning to Langley $910.27 with which to pay the balance.
The evidence that Ohamness executed the deed and that the check was drawn in his favor, in connection with the other evidence in this case, does not raise an issue of fact tending to show either that Ohamness paid the debt in full or that Langley paid no part of same. Langley paid one-half the debt and was entitled to his judgment.
We therefore recommend that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the district court be so reformed as to award the plaintiff in error, Langley, recovery against defendant in error, Joe S. Godwin, for the sum of $1,621.05 with legal interest from the date of the judgment, and tha.t, as reformed, the judgment of the district court be affirmed.
CURETON, C. J.Judgment of the Court of Civil Appeals reversed, and judgment of the district court reformed, and affirmed, as recommended by the Commission of Appeals.