32 S.W. 824
ROLLER 
v. 
SANDIFER et al.
Court of Civil Appeals of Texas.
October 12, 1895.
        Appeal from Freestone county court; A. G. Anderson, Judge.
        Action by L. G. Sandifer and others against George Roller, Sr. From a judgment on appeal to the 
county court for plaintiffs, defendant appeals. Reversed.
        J. A. Tucker and W. R. Boyd, for appellant.
Page 825
        FINLEY, J.
        This suit was brought by L. G. Sandifer & Co., a mercantile firm composed of L. G. Sandifer and J. P. 
Robinson, doing business under the firm name of L. G. Sandifer & Co. After dissolution of said firm the suit 
was prosecuted to judgment by J. P. Robinson. The suit was originally instituted in the justice court upon a 
claim of indebtedness of $120,—a balance due on one soda fountain sold to H. C. Roller & Bro., with 10 
per cent. interest thereon from January 1, 1892. It was alleged that George Roller, Sr., verbally promised 
to pay for said soda fountain, upon a good and valuable consideration, etc. The case was appealed to the 
county court, and upon a trial there judgment was obtained by plaintiff for the amount sued for, from 
which judgment this appeal is prosecuted. The plaintiff's evidence in this case showed that the soda 
fountain was sold by Sandifer & Co. to H. C. Roller & Bro. H. C. Roller & Bro. conveyed their stock of 
goods to a trustee for the benefit of their creditors, preferring their father, George Roller, the defendant in 
this suit. George Roller purchased the stock of goods, including the soda fountain, from the trustee, and 
took possession of the same. J. P. Robinson, the plaintiff, went to the store (according to his testimony), 
and put his hand upon the soda fountain, and told George Roller that the fountain was his; that he had a 
mortgage on it. George Roller replied to him, to let it remain in the store, and that he would see it paid 
for. Robinson said this would not do. George Roller then said: "Let it stay here, and I will pay for it myself. 
I cannot pay everything at one time;" to which Robinson replied, "All right." He further testified that he let 
Roller keep the soda fountain, and that he only looked to him for payment. There is no pretense made 
that he ever released the other parties from the payment of the debt. The uncontroverted testimony 
showed that Sandifer & Co. had no mortgage upon the soda fountain, or any character of lien or claim 
upon it. They had sold it to H. C. Roller & Bro. to be paid for in installments. A part of the purchase money 
had been paid, and they owed for the balance. Assuming that the plaintiff's testimony is true,—and this it 
is proper for us to do in support of the verdict of the jury, although it is positively contradicted by George 
Roller, his son, and the trustee,—still the facts did not justify a judgment in favor of the plaintiff against 
George Roller. It was a plain verbal promise to pay the debt of another, without any pretense of a 
consideration for such promise on the part of George Roller. The evidence shows that George Roller owned 
the soda fountain at the time he made the promise. The plaintiff had no sort of claim whatever upon it, 
and there is not the slightest indication of any valuable consideration as the basis for such a promise. 
Under this state of the evidence, the court should have instructed the jury to find for the defendant under 
his plea of the statute of frauds. 1 Sayles' Civ. St. art. 2464; Hill v. Frost, 59 Tex. 25; Muller v. Rivire, Id. 
640. The judgment of the court below is reversed, and the cause remanded.