Dodson v. Watson

• Decision Date: 21 April 1920
• Docket Number: (No. 2549.)
• Citation: 220 S.W. 771
• Parties: DODSON v. WATSON.
• Court: Texas Supreme Court

Page 771

220 S.W. 771

DODSON v. WATSON.

(No. 2549.)

Supreme Court of Texas.

April 21, 1920.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Action by D. S. Dodson, administrator of the estate of Mrs. Pallie Watson, deceased, against F. M. Watson. From judgment rendered, plaintiff appeals to Court of Civil Appeals. Questions certified to Supreme Court. Questions answered.

See, also, Watson v. Parker, 50 Tex. Civ. App. 616, 111 S. W. 771; 57 Tex. Civ. App. 32, 121 S. W. 209; 143 S. W. 329.

F. O. McKinsey, of Weatherford, J. C. Wilson, of Mineral Wells, and R. L. Stennis, of Dallas, for appellant.

Gross & Gross, of Mineral Wells, and Stephens & Miller, of Ft. Worth, for appellee.

PHILLIPS, C. J.

The certificate of the honorable Court of Civil Appeals reflects that the suit was by the administrator of Mrs. Pallie Watson, deceased, against F. M. Watson, in part upon the following instrument in writing, as an account stated, and for the balance thereby shown to be due by the defendant:

                           "Aledo, Texas, October 24, 1890
                

"This is to certify that I have received for management of Pallie Watson the following amounts of money and to be loaned at the best of my judgment:

                March 25, 1888, to cash .................. $   800 00
                Aug. 20th, 1888, to cash .................     746 25
                April 15, 1889, to cash ..................   1,478 00
                Jan. 1, 1890, to cash ....................   2,147 44
                May 1, 1890, to cash .....................   1,131 80
                                                            _________
                   Total amount .......................... $ 6,303 49
                

"and have advanced to her the following amounts

                July 1, 188_ bill of grub at old farm ..... $   12 85
                July 9, 1889, cash ........................    566 50
                July 20, 1890, cash .......................  2,939 25
                                                            _________
                    Total advanced to Pallie Watson ....... $3,518 60
                

"This is a correct account except the interest that has accumulated on the money I have.

                  "[Signed]                F. M. Watson."
                

The defendant pleaded that prior to the date of the instrument he purchased certain lands as the agent of Mrs. Watson at her instance, paying therefor out of her funds in his hands in one transaction $2600.00, and an additional sum of $28.25 as expenses connected with the purchase, and in the other $800.00, to which amounts he was entitled to be credited; and that through mistake and oversight and because of his lack of skill in such matters these credits were not stated in the instrument of writing. Upon the trial, evidence of the purchase of the lands and payment of such amounts by the defendant was adduced. It is a disputed issue as to whether the omission of these amounts from the credits shown in the written instrument was due to mutual mistake of the parties. In submitting the case to the jury the trial court did not require it to be found that any mistake causing such omission was mutual, and refused a special instruction requested by the plaintiff that the defendant would not be entitled to the credits unless such mistake in their omission from the written instrument was mutual.

The correctness of this action of the trial court is the question certified.

There have been three appeals of the case, besides the pending one. The trial court followed the ruling on the question made by the honorable Court of Civil Appeals for the Third District on the third appeal, which was that the defendant was entitled to establish the credits without being required to show that they were omitted from the written instrument through mutual mistake. 143 S. W. 329. The Court of Civil Appeals in certifying the question states that it is not inclined to agree with that holding.

There is possibly some confusion in our decisions as to the conclusiveness of an account stated.

In Horan v. Long, 11 Tex. 231, Judge Lipscomb treated a settlement of accounts between partners, reduced to writing, signed under their respective seals, and long acquiesced in, as not subject to be re-opened on account of mistake unless the mistake was mutual. He dealt with the particular agreement as an ordinary written contract and hence impeachable only upon the ordinary grounds sanctioned by equity. It is not clear from the opinion that he intended to lay down the ruling as applicable to an "account stated" in its legal definition. The decision is based upon the estoppel created by what it terms the "contract."

It is to be noted that if the agreement, there, is to be considered as an account, it was an "account settled" rather than an "account stated."

In Railway Co. v. Snelling, 59 Tex. 116, there had been a settlement of accounts, which was pleaded by the defendant, from which the plaintiff claimed various items had been omitted by mistake. The court charged the jury that if these items had, in the settlement, been "forgotten or overlooked by the parties," the settlement, as to them, was not conclusive. Judge Stayton interpreted the charge as informing the jury that if by mutual mistake the particular items were not brought into the settlement, the plaintiff was entitled to have them considered, and added, "This charge is believed to have stated the rule applicable to the case correctly." Judge Hemphill's opinion...