Briscoe v. Bright's Adm'R

• Decision Date: 15 June 1921
• Docket Number: (No. 181-3214.)
• Citation: 231 S.W. 1082
• Parties: BRISCOE v. BRIGHT'S ADM'R.
• Court: Texas Supreme Court

Page 1082

231 S.W. 1082

BRISCOE v. BRIGHT'S ADM'R.

(No. 181-3214.)

Commission of Appeals of Texas, Section B.

June 15, 1921.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by John T. Briscoe against the administrator of the estate of J. M. Bright, deceased, and cross-action by the defendant. Judgment of the Court of Civil Appeals (202 S. W. 183) reversing the trial court's judgment for the plaintiff, and plaintiff brings error. Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.

C. C. Harris, of San Antonio, De Montel & Fly, of Hondo, and Hertzberg, Kercheville & Thomson, of San Antonio, for plaintiff in error.

J. F. Carl, of San Antonio, for defendant in error.

McCLENDON, P. J.

This action was brought by John T. Briscoe against the administrator of the estate of J. M. Bright, deceased, to cancel certain notes which plaintiff had executed in favor of the deceased during his lifetime, upon the ground that the deceased had made a verbal contract with plaintiff to the effect that if the latter would attend to the business of deceased for the rest of his life, as he had theretofore done, deceased would cancel all notes owing to him by plaintiff at the time of his death. Defendant by way of cross-action sought judgment against plaintiff upon the notes. The case was tried twice, each of which trials was by jury and upon one special issue only—whether the contract was made as alleged—and upon each trial judgment was rendered for the plaintiff upon favorable answer to that issue. Appeal from the first judgment resulted in its reversal and a remand of the cause for further trial upon the holding, among others, that the evidence was not of sufficient certainty and clearness to support recovery. 193 S. W. 156. On the last appeal the Court of Civil Appeals, upon like holding as to the sufficiency of the evidence, reversed the trial court's judgment and rendered judgment that plaintiff take nothing and that defendant recover upon his cross-action. 202 S. W. 183.

The cause was presented in the Court of Civil Appeals upon 16 assignments of error, 10 of which were sustained by that court, and the remaining 6 overruled. The latter need no mention for the reason that they are not brought before the Supreme Court for review by any assignment or cross-assignment of error. The 10 assignments sustained by the Court of Civil Appeals, eliminating duplications, may be grouped under the three following holdings of that court:

(1) That there was a variance between the contract declared upon and the contract proved.

(2) That the evidence was not of that clear, strong, cogent, satisfactory, and convincing character required to support a judgment in cases of this character.

(3) That the relation of plaintiff to deceased being that of attorney to client, and therefore confidential and fiduciary, and deceased being aged and infirm, the contract was unfair, unreasonable, and procured by undue influence, which rendered it nudum pactum.

We will state only sufficient of the pleadings and evidence to make clear our conclusions upon these holdings.

Plaintiff alleged that, beginning with the year 1907, when he began practicing law, and up to the 28th day of April, 1914, he had attended to all of deceased's business, during which time he had received no compensation for his services. That on the date last named—

"the said J. M. Bright orally agreed and contracted * * * with this plaintiff that in consideration of the plaintiff having rendered legal services to him in the past, and in consideration of all legal services to be rendered by the plaintiff to him in the future and during the life of said J. M. Bright, that he, the said J. M. Bright, would pay the plaintiff for same by cancelling all notes and indebtedness owing by plaintiff to said J. M. Bright at the time of the death of said J. M. Bright."

The notes sought to be canceled were specifically described in the petition.

It was shown that at the time of making the alleged contract deceased was very old and infirm. He had no family of his own, and all his heirs-at-law lived in another state. Plaintiff had transacted all of deceased's business for a number of years and continued to do so up to the time of his death, which occurred some eight or more months after the alleged contract was made. There was no evidence that deceased ever paid plaintiff anything for any service rendered. The witnesses who testified in support of plaintiff's allegations were Mrs. Adelia Ray and her husband, A. L. Ray, Mrs. C. G. Newcomb, John H. Snyder and J. C. Stroud. Mrs. Ray had been housekeeper and nurse for deceased for about seven years prior to his death. She married A. L. Ray about two years before deceased's death, and they both lived with deceased during those two years. Mrs. Newcomb had also been a housekeeper for deceased. Mrs. Ray gave the following testimony:

"As to what conversation I heard between Mr. Bright, before his death, and Mr. Briscoe, with reference to the contract between them, for Mr. Briscoe to continue doing his business, in 1914, on May 28th, Mr. Briscoe came up there to pay some interest on his notes, and he said, `John, I hate to take this from you, but I have to live, but if you will just continue to pay interest as long as I live, why at my death the notes will be canceled, you will owe me nothing,' and Mr. Briscoe said, `All right, I will do the work for you.' Which he did, as long as he lived."

"As to whether he said anything in that conversation about Mr. (Briscoe) continuing to attend to his business as long as he lived, he did; Mr. Bright said, `If you will continue to attend to my business, as you have done, as long as I live, at my death you will owe me nothing and the notes will be canceled at my death,' and Mr. Briscoe said, `All right, Mr. Bright, I will do the work for you as I have done.'

"Mr. Bright told me before he died that if he never lived to make a will, he wanted me to testify after his death that Mr. Briscoe would not owe him anything, that the notes would all be canceled and Mr. Briscoe would not owe him anything.

"Mr. Bright did not say anything about who would testify to establish my claim; he didn't tell me who would do that.

"As to what Mr. Bright's exact words were on that occasion to Mr. Briscoe, I don't remember. Mr. Briscoe came to pay the interest on his notes, and he said, `John, I hate to take this from you, but I have to live, but if you will continue to do my work for me, as you have done, as long as I live, at my death the notes will be canceled and you owe me nothing,' and Mr. Briscoe said, `All right, I will,' Mr. Briscoe said, `All right, Mr. Bright, I will do the work for you, attend to your business for you, as I have done, as long as you live.' Mr. Bright said, `The notes will be canceled and you will owe me nothing at my death.' I am sure that he said that he would cancel those notes."

The following is from the testimony of Mr. Ray:

"As to having a conversation myself with Mr. Bright with reference to an understanding between Mr. Bright and Mr. Briscoe, I did. Mr. Briscoe had been up there, I think it was in May, 1914; I don't know what day of the month it was. He had been up there to pay some interest on some notes, and Mr. Bright had a conversation with Mr. Briscoe in the presence of my wife, and that evening, that night after supper, we were out on the front...