Dodson v. Watson

• Decision Date: 16 October 1920
• Docket Number: (No. 7693.)
• Parties: DODSON v. WATSON.
• Court: Texas Court of Appeals

225 S.W. 586

DODSON v. WATSON.

(No. 7693.)

Court of Civil Appeals of Texas. Ft. Worth.

October 16, 1920.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

Action by D. S. Dodson, administrator, against F. M. Watson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

See, also, 220 S. W. 771.

Stennis & Wilson and F. O. McKinsey, all of Weatherford, for appellant.

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

DUNKLIN, J.

The disposition of a former appeal in this case is shown in 143 S. W. 329.

The suit was instituted by Adam Parker, administrator of the estate of Pallie Watson, deceased, against F. M. Watson, who, as agent or trustee for Pallie Watson during her lifetime, had received from her certain moneys to be loaned out for her benefit, and upon another receipt executed by F. M. Watson showing that he had received from Pallie Watson for collection certain notes. The two instruments sued on are set out in full in the opinion rendered by the Court of Civil Appeals, cited above, reversing a former judgment of the trial court and remanding the cause for another trial.

On the last trial judgment was rendered in favor of the defendant, and the plaintiff has appealed.

One of the defenses urged by Watson to the suit was that when he gave the instrument of date October 24, 1890, charging himself with the items of cash received from Pallie Watson, he had failed to credit himself with certain sums of money which he had already paid out for Pallie Watson, which were not credited in said statement and which were omitted therefrom by mistake and oversight. Plaintiff contended that defense could not be sustained unless the mistake pleaded was shown to have been a mutual mistake of both parties to the instrument. That contention was overruled by the Court of Civil Appeals at Austin as shown in its opinion, and that opinion was followed by the trial court upon the last trial. The same contention is made the basis of several assignments of error presented by the plaintiff on this appeal. This court has certified that question to the Supreme Court, who has decided it adversely to appellant and in accordance with the ruling of the Court of Civil Appeals at Austin. See Dodson v. Watson, 220 S. W. 771.

There was no error in the exclusion of the proffered testimony of Rebecca Rawlins to the effect that she heard a conversation betwen Pallie Watson and the defendant, which occurred August or September, 1902, in which Pallie Watson said to the defendant, "I suppose I have not got much more money coming to me from you," to which the defendant replied, "Yes, I have still got about $3,000 of your money in my hands." Mrs. Rawlins was shown to be an heir of Pallie Watson, and such testimony came within the inhibition of article 3690, Vernon's Sayles' Tex. Civil Statutes, which is as follows:

"In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."

The testimony quoted was offered as a whole and was objectionable as offered. It included the statement by Pallie Watson as well as the statement by the defendant, and the statement made by the former was essentially a question propounded, and the statement by the defendant was in answer to the question. Tomlinson v. Noel, 223 S. W. 1028.

And the fact that Rebecca Rawlins was not nominally a party to the suit made no difference, since she was essentially a party through the plaintiff, Adam Parker, who was suing as administrator of the estate of Pallie Watson, and therefore as representative of all the heirs and creditors. Clark v. Briley, 193 S. W. 419; Leahy v. Timon (Sup.) 215 S. W. 951; Perdue v. Perdue (Sup.) 217 S. W. 694; Ross v. Kell, 159 S. W. 119.

The testimony of the defendant to the effect that he paid to Mrs. Pierce $297.50 as part of the purchase price for certain land conveyed to Mrs. Pallie Watson, and that he paid to Dr. Ketchum $2,600 as the purchase price of another tract conveyed to Mrs. Pallie Watson, was admissible as against the objection urged by plaintiff, predicated upon the same statute, on the ground that it was a transaction between the defendant and Mrs. Pallie Watson. While such payments were made for the benefit of the deceased, it was not a transaction with her but with the vendors of the property conveyed. Potter v. Wheat, 53 Tex. 401; Moores v. Wills, 69 Tex. 109, 5 S. W. 675. It is familiar rule of decisions of this state that the terms of that statute will not be so extended by judicial construction as to exclude testimony that is not expressly excluded by its provisions. Roberts v. Yarboro, 41 Tex. 449; Markham v. Carothers, 47 Tex. 25; Newton v. Newton, 77 Tex. 508, 14 S. W. 157; Martin v. McAdams, 87 Tex. 225, 27 S. W. 255.

The following instruction was given to the jury at the request of the defendant:

"If you find from the evidence, taking into consideration the long lapse of time, the friendly relations between defendant and Pallie Watson, and the other circumstances in evidence, there was a full settlement between Pallie Watson and defendant, you will find for the defendant."...