Chamberlain v. Wright

• Decision Date: 22 April 1896
• Citation: 35 S.W. 707
• Parties: CHAMBERLAIN et al. v. WRIGHT.
• Court: Texas Court of Appeals

35 S.W. 707

CHAMBERLAIN et al. v. WRIGHT.

Court of Civil Appeals of Texas.

April 22, 1896.

Appeal from county court, Bee county; Felix J. Hart, Judge.

Action by Edwin Chamberlain & Co. against B. B. Wright on a note. Judgment for defendant, and plaintiffs appeal. Reversed.

Houston Bros., for appellants.

NEILL, J.

This case originated in the justice's court, where judgment was for the appellee. On appeal to the county court, a like judgment was rendered. The suit was by appellants upon appellee's promissory note, of which the following is a copy:

"$118.09 correct amount.

                "$136.91/100.            Alice, Jan. 4, 1894
                

"On the first day of Dec., 1894, I promise to pay to the order of Fleming & Hensey the sum of one hundred and thirty-six & 91/100 dollars, at Commercial Nat. Bank, Beeville, Texas, with interest from maturity at the rate of 10 per cent. per annum, and ten per cent. additional attorney's fees in case of legal proceedings to enforce collection.

                     "[Signed]              B. B. Wright."
                

—Which note is indorsed in blank by the payees.

It was claimed by the appellants (who were plaintiffs in the lower courts) that the true amount of indebtedness intended by the parties thereto to be evidenced by the note was $118.09; that the statement of a different amount in the note was a mutual mistake of the parties, resulting from an error in the calculation of the amount; and that the figures and words "$118.09 correct amount," written above the note, and the erasure of the marginal figures "$136.91/100," in the left-hand corner, indicating the amount, were to indicate the error. The uncontradicted evidence shows that such were the facts. Under a plea of non est factum, it is contended by appellee that such facts constitute such an alteration as to avoid payment of the note. An alteration of a written contract, such as to destroy it as a legal obligation, is any change in its terms, made by any party thereto without the express or implied consent of all the other parties, which varies its original legal effect and operation, whether in respect to the obligation it imparts, or its force as a matter of evidence. Daniel, Neg. Inst. § 1373. Tested by this definition, if there is any alteration at all, it is not such as to destroy its original legal effect. The supposed change was simply indicative of a mistake to be corrected to appellee's advantage, and showed an honest purpose on the part of the holder not to avail himself of an error in his...