Able v. Lee

• Decision Date: 01 January 1851
• Citation: 6 Tex. 427
• Parties: ABLE v. LEE.
• Court: Texas Supreme Court

6 Tex. 427

ABLE

v.LEE.

Supreme Court of Texas.

1851.

Where several instructions taken together present the law of the case fairly to the jury, the judgment will not be reversed on the ground that one or more of the instructions taken separately were improper, unless it appears from the statement of facts that the jury may have been misled; and not even then if a remittitur as to the particular in which they have been misled be entered.

To constitute a valid plea of payment, it is not necessary that a bill of particulars showing the “items” of payment be filed with the plea, for the defendant may not propose to prove “items” of payment.Proof of payment of the debt in money is admissible under a general plea of payment, but proof of payment in land or any other commodity than money cannot be received, if objected to, under such a plea.(Note 76.)

Appeal from Cherokee.The appellee sued the appellant upon a promissory note for the payment of six hundred and forty-four dollars.There was a general denial and a plea of payment, alleging that “since the institution of this suit they(the defendants) have paid the sum above demanded of them by the said plaintiff.”The plaintiff excepted to this plea because not accompanied by “a bill of particulars of the payment of the debt;” which exception the court overruled.

At the trial, the plaintiff having given in evidence the note sued on, the defendants introduced a witness who testified in substance that he was employed by the plaintiff after the bringing of the suit to settle with the defendant the note sued on, and also another note for one thousand dollars; that the plaintiff delivered to him the attorney's receipt, given for the note for collection, and directed him to settle with the defendant the amount of the notes in any manner he thought best; that he accordingly did settle with the defendant Able, and that he took in payment of the two notes two tracts of land, one for about six hundred and forty acres, and the other for about eight hundred acres; that there was some dispute about the amount of the two notes, but they finally agreed upon a compromise of the amount at one thousand three hundred and fifty or one thousand four hundred and fifty dollars, which was fully paid by the defendant Able to the witness, as agent for the plaintiff, in lands received in full payment and satisfaction of the notes; that at the time of the payment something was said about the attorney's fee, the witness did not distinctly recollect what, but was under the impression that the defendant was to pay the attorney for what he had done; that the defendant started to go to see the attorney; the witness afterwards informed the attorney of what had been done, who said it was all right; he was under the impression that he told the attorney that the defendant would settle his fee; the land was taken and received in full satisfaction, so far as the plaintiff was concerned, except as to the attorney's fee, which, it was the witness's impression, was to be paid by the defendant Able, to whom he then delivered the attorney's receipt.

The court instructed the jury, in effect, that if the defendant had paid to the plaintiff the amount of the note sued on they would find for the defendant.

But if they believed the agreement to have been that the defendant was to pay the plaintiff's attorney any part of the amount which he had failed to pay they would find for the plaintiff the amount still due upon the note, after deducting whatever amount the defendant had proved he had paid upon the note.

If the defendant had not proved the payment of any amount the jury could not ascertain it for him, but must find for the plaintiff.

The defendant's attorney asked the court further to instruct the jury “that if they are satisfied that the whole amount due to the plaintiff had been paid, either to the plaintiff or his agent, and had been so accepted and received by the plaintiff or his agent, the jury can only find the costs against the defendant;” which instruction the court gave with the qualification contained in the general charge previously given.

The defendant then asked the following instruction: “That the jury are to allow to the defendant all amounts that have been proven to have been paid and accepted as payment, whether the same was paid in cash or property;” which instruction the court refused.

At the request of the plaintiffthe court instructed the jury “that an attorney's fee is a lien upon the amount and evidence of indebtedness in his hands until paid.”

The jury retired, and after some time returned into court, not having agreed upon their verdict, when, “in answer to some remarks from the defendant's attorney, the court replied, in hearing and presence of the jury, that the jury had nothing to do with the lands paid by the defendant if the defendant had not proved their value or that he had fully complied with his agreement by paying the attorney's fee.”The jury retired, and after having spent some time longer in consultation, returned a verdict for the plaintiff for five hundred and forty-one dollars and fifty-one cents.Whereupon the plaintiff's attorney, under the direction of the court, remitted the excess above sixty-two dollars, and for that sum the court gave judgment.There was a motion for a new trial, which the court overruled, and the defendant appealed.

The errors assigned were the rulings of the court in the instructions to the jury.

Davis and G. A. Everts, for appellant.

S. P. Donley, for appellee.

WHEELER, J.

It is objected that the court attached to the first instruction asked by the defendant a qualification.

The...