Appellant sued appellee upon two items of alleged indebtedness, one amounting to $4,486.31 and interest, and the other amounting to $200 and interest. There was a jury trial, and, after the jury had reported that they were unable to agree, the trial court instructed a verdict for the defendant as to the larger item, and a verdict and judgment was rendered for the plaintiff as to the other item, and for the defendant as to the former, and the plaintiff has appealed and assigns as error the action of the trial court in the particulars referred to.
We have reached the conclusion that the judgment should be affirmed, and in so doing we hold:
1. That after submitting the entire case to the jury, and the report of that body that it was unable to agree, it was within the discretion of the trial court to direct a verdict for the defendant, as was done, and, ufion the verdict so directed, to render judgment.
2. We also hold that the trial court properly instructed a verdict for the defendant as to the $4,486 item, for the reasons: First, that the plaintiff failed to prove the contract upon which the recovery was sought; and, second, the contract, if proved, was within the statute of frauds. Appellant bank sought to hold appellee Abeel liable upon the theory that hie had entered into an oral contract, by the terms of which he became obligated to pay to the bank a debt then owing to the bank of the Texas Packing Company. The proof shows that the Texas Packing Company was engaged in the business of buying and shipping poultry and eggs; that it had shipped several cars from Waco to New York, had delivered to the bank the bills of lading and drafts drawn upon the consignees, which drafts the bank had cashed. When the shipments referred to reached their destination, it seems that the market was not satisfactory, and the packing company and appellee, Alfred Abeel, who was a surety for the packing company as to a large indebtedness to the bank, desired that the shipments referred to should be held in New York for a better market, while the bank, who was uneasy about its security for the money advanced on the shipments, seemed disposed to enforce its legal right, and have the shipments sold out, regardless of the condition of the market.. This is the most favorable view that can be taken of the testimony as respects the circumstances under which it is alleged that Abeel agreed to pay the debt of the packing company. Appellant contends that the contract to pay that debt was assumed by appellee, acting in person, and by Mr. Black and Mr. McAshan, one cashier and the other vice president, acting for the bank. The proof shows that, on the occasion in question, notice had been received that one car of the poultry had been seized under a judicial attachment, and that a conference was held in the bank in reference to that matter; those present being appellee Abeel, Mr. Lacy, president, Mr. .McAshan, vice president, Mr. Black, cashier of the bank, and Judge Sleeper, who was perhaps representing only appellee Abeel. Judge Sleeper informed the parties what steps were necessary to be taken in order to release the shipment that was attached; and, the conference having ended, Mr. Lacy and Judge Sleeper went into another room to confer about another matter, and Mr. Abeel, after starting to leaVe the bank, returned, and, according to the testimony of Mr. Black and Mr. McAshan, stated to them, in substance, that he was responsible, and that when the matter was closed up he would pay the bank
Appellant makes the further contention that thereafter, while the shipments were handled in its name, in fact appellee was permitted to control the same, and that the instructions given by appellant as to the disposition of the property were given at the request of appellee, who was endeavoring to make the property sell for more than the amount for which it was pledged to the bank, in order that the surplus might be applied to the packing company’s indebtedness to the bank, for which appellee was surety. If it be conceded that testimony was produced tending to support the contention referred to, still we are of opinion that the testimony falls short of showing that appellee became liable for the indebtedness of the packing company in the matter referred to. In the first place, the testimony of the witnesses McAshan and Black fails to show that a contract was entered into by which it was mutually agreed between the bank and Abeel that the former would pay to the latter whatever loss it might sustain on account of the advancements it had made on the shipments, and that the latter would forego its right to have the property sold at once. In fact, the testimony fails to show that either Mr. McAshan or Mr. Black made any promise whatever on behalf of the bank, and merely shows that Mr. Abeel, without any consideration whatever, declared that he was responsible and promised, or at least stated, that when the matter was settled up he would pay any loss that the bank might sustain. If this was a promise, it was without consideration, because there was no corresponding agreement or obligation upon the part of the bank to refrain from enforcing its right to have the property sold, or to do or not to do anything. In fact, it does not appear that the matter of appellant’s right to force an immediate sale of the property, and appellee’s desire that an immediate sale should not be ma'de, was referred to, or had any connection with the statement and promise imputed to appellee by appellant’s witnesses. So we conclude that the alleged promise on the part of appellee to pay the shortage referred to was without consideration, and did not constitute a binding contract.
But we are also of opinion that, if it was supported by a consideration, it was merely an oral promise to pay the debt of another, and was within the statute of frauds. Appellant seeks to avoid the effect of the statute by the contention that testimony was submitted tending to show that appellee’s primary purpose in making the promise was not to secure appellant’s debt, but to obtain a pecuniary benefit for himself. The evidence fails to show that appellee had any lien upon the property, or was in possession of it, or would have had any right to control it but for appellant’s prior right; and therefore we hold that the transaction comes within the purview of the statute of frauds, and appellant was not entitled to have the alleged contract enforced.
No error has been shown, and the judgment is affirmed.
Affirmed.