O. C. Robitzsch & Son v. Taliaferro

• Decision Date: 08 February 1922
• Docket Number: (No. 6683.)
• Court: Texas Court of Appeals
• Parties: O. C. ROBITZSCH & SON et al. v. TALIAFERRO.

Page 637

237 S.W. 637

O. C. ROBITZSCH & SON et al. v. TALIAFERRO.

(No. 6683.)

Court of Civil Appeals of Texas. San Antonio.

February 8, 1922.

Appeal from Bexar County Court; McCollum Burnett, Judge.

Suit by George B. Taliaferro, executor of the estate of Jake Wolf, deceased, against O. C. Robitzsch & Son and another. Judgment for plaintiff, and defendants appeal. Affirmed.

H. A. Hirschberg, Herbert Davis, W. R. Parker, and Leonard Brown, all of San Antonio, for appellants.

Taliaferro, Cunningham & Moursund and W. B. Jack Ball, all of San Antonio, for appellee.

SMITH, J.

As executor of the estate of Jake Wolf, deceased, George B. Taliaferro sued O. C. Robitzsch & Son (Harold Robitzsch) and Ed. F. Melcher for an alleged balance of $450 due upon a note executed by them in favor of Wolf, for the sum of $1,000. In their answer the defendants admitted the plaintiff had a good cause of action against them, except in so far as it might be defeated by a plea of accord and satisfaction, which they set up. By their admission the defendants were permitted to take the offensive and to open and close the case. A jury found against them in the special issues submitted, and judgment was rendered against them, in favor of Judge Taliaferro, as executor, in the amount sued for. It appearing that Melcher was an indorser, and not a maker, of the note, he was given judgment over against his codefendants.

The defendants' plea of accord and satisfaction was founded upon a check which O. C. Robitzsch had caused to be delivered to Judge Taliaferro for $550, and which at the time of the trial contained a stipulation on its back, above the indorsement thereon of Taliaferro, that "This pays Jake Wolf note in full." It was alleged by the defendants in their plea that this indorsement was on the check at the time it was delivered to and accepted and cashed by Taliaferro, and Robitzsch so testified upon the trial, while Taliaferro denied this, both in his sworn pleadings and in his testimony. The jury found against Robitzsch on this issue. Robitzsch had written the check in El Paso, and mailed it, together with the following letter, to his codefendant, Melcher, at San Antonio:

"Hotel Orendorf, George J. Thomas, Manager.

                              "El Paso, Texas, March 21, 1919
                

"Mr. Ed. Melcher, San Antonio, Texas—Dear Friend: Inclosed you will please find check for ($550.00) five hundred and fifty dollars, payable to George Taliaferro to cover the balance due on the Jake Wolf note. I have written on the back of the check that it pays the Jake Wolf note in full.

"I called on Mr. Taliaferro in his office after I saw you before I left for El Paso and told him that I had paid Jake Wolf the $450.00 long before his death.

"He informed me that he could find no record of it on the note, he then asked me about interest on the note of which he could also find no record on the note.

"I told him that I most certainly did pay him the interest on the note long before it was due, which was before I paid him the $450.00 and told him that Wolf made a memo of it in a little vest pocket book.

"Taliaferro looked for the book, and did find where I had paid Wolf the interest.

"Mr. Taliaferro informed me that there was no question in his mind but that I had paid the $450.00 dollars since he saw the memo of the interest. Mr. Taliaferro advised me to give him a check for the $550.00 dollars and he would write Mr. Wolf's brother recommending taking the $550.00 dollars in full payment. I am mailing you this check, that you may know that it was paid. When you give it to Taliaferro get a receipt or the note hold same for me.

                 "Thanking you for the many favors
                   "Your friend,        O. C. Robitzsch."
                

Some time after the receipt of this letter and accompanying check, Melcher turned over the check to Taliaferro, but it is not contended that the latter knew anything of the letter or its contents, or that such knowledge was at any time communicated to him. Robitzsch testified that when he wrote the check he placed thereon the indorsement that it "paid the Wolf note in full." Melcher, who had the check in his possession 12 or 15 days before turning it over to Taliaferro, testified that he "couldn't swear that this little indorsement was on the back of this check at the time that I gave it to Mr. Taliaferro," this being the only reference in his testimony to the issue. Judge Taliaferro testified that the indorsement was not on the check at the time he received and indorsed it for collection. When it was paid, the check, it is presumed, went back into the hands of Robitzsch, and remained in his custody until produced upon the trial. By order of the court below the orginal check accompanies the record here. An inspection of the instrument discloses that the number originally written on the face of the check has been changed, and the new number written in apparently different ink, and that the indorsement on the back that "This pays the Jake Wolf note in full" is apparently written in a different ink from that in which the check itself is written, and in the same ink in which the substituted number is written. It is not clear that the new number, and the indorsement, were written by the same person who wrote the body of the check, nor is the contrary clearly apparent. When appellants, defendants below, offered the Robitzsch letter in evidence, it was excluded upon the objections of appellee that—

"It contained self-serving declarations, and that it was hearsay and constituted a transaction between Robitzsch and Melcher, of which the plaintiff, George B. Taliaferro, had no notice, and that there was no evidence that the contents of said letter were communicated to said Taliaferro at any time by said Melcher."

The letter was offered in its entirety, and for every purpose it could serve. No particular part of it was segregated from the whole and offered; nor was it offered for any particular purpose. This being the case, if any particular matter in the letter was subject to the objections made, the court did not err in excluding the whole letter, since it was offered in its entirety. Robinson v. Stuart, 73 Tex. 267, 11 S. W. 275; Ry. Co. v. Washburn, 184 S. W. 580; McBride v. Kaulbach, 207 S. W. 576; Nevill v. Ry. Co., 187 S. W. 388. It may be said, too, that, if the letter was admissible for a particular purpose only, but inadmissible for any other, still it should have been excluded upon appropriate objection, since it was offered for every purpose it might serve. It is by these rules the admissibility of the letter in question must be first tested.

In general terms, appellants' position is that the material issue in the case was whether or not the indorsement, "This pays the Jake Wolf note in full," was put on the check at the time the latter was sent to Melcher, and that the letter, written at the same time and sent to Melcher along with the check, "was a part of the transaction of the execution and delivery of said check, being a part of the res gestæ of said transaction, which constituted the basis for defendants' plea of accord and satisfaction"—that the letter was admissible as a part of the res gestæ, as corroborative of Robitzsch's testimony that at the time the check was executed by him, and delivered to Taliaferro by...