Gilliam v. Alford
| Decision Date | 29 November 1887 |
| Citation | 6 S.W. 757 |
| Parties | GILLIAM v. ALFORD <I>et al.</I> |
| Court | Texas Supreme Court |
Appeal from district court, Rusk county; J. G. HAZLEWOOD, Judge.
Sallie T. Gilliam, plaintiff, sued E. B. & K. B. Alford, defendants, for money paid them through mistake and alleged fraud. Judgment for defendants, and plaintiff appeals.
John R. Arnold and J. H. Wood, for appellant. Buford & Hall, for appellees.
Miniard Gilliam, who was the husband of the appellant, procured two benefit certificates from the "American Legion of Honor," each for $3,000. One of these was payable to his wife, on his death, and the other was payable to him, or to him and his children, on the death of his wife. He paid the dues and assessments for some time, but then became unable to pay them, and he then made application to the order to reduce each of the certificates to $1,000. He was advised by the secretary of the order not to have the certificates reduced, but to get some person to pay the dues and assessments on both, in consideration of a transfer of an interest in each certificate. Gilliam sought such an arrangement with others, but failed, and then made a written agreement with the appellees, by which it was agreed that they should pay the dues and assessments on both policies, as they accrued, and that for this they should receive the sum of $2,000 under each certificate, when they became payable. From the time that agreement was made until the death of Miniard Gilliam, the appellees paid all dues and assessments. After the agreement was made, Gilliam lived about 15 months. On his death, in so far as it was affected, the benefit certificate payable on the death of Mrs. Gilliam was canceled, she repaying or agreeing to repay such sums as the appellees had paid thereon. After the death of Gilliam, which occurred on April 4, 1886, the appellees asserted a claim, under the agreement made with him, to $2,000 of the money that then fell due.
The evidence shows very clearly that Mrs. Gilliam had full knowledge, during the life-time of her husband, of the agreement which he had made with the appellees, and of all facts which affected the rights of the parties to the money due on the certificate. With such knowledge, Mrs. Gilliam, on May 29, 1886, executed and acknowledged, before a notary public, the following instrument: "Know all men by these presents, that I, Mrs. Sallie Gilliam, wife of Miniard Gilliam, deceased, hereby agree that the contract made and entered into between my husband, Miniard Gilliam, and Messrs. Alford Bros., of Overton, Rusk county, Texas, remain in full force and effect, and that I consent that the agreement in the matter of his assigning two thousand dollars of his policy in the A. L. of H. shall be carried out in full, and to the letter." Subsequently to this, a draft was sent by the order to Mrs. Gilliam, payable to herself or order, for the entire sum by the terms of the certificate due on the death of her husband. This was cashed by her, and out of the proceeds she received $1,400, and gave to the appellees a draft on the bank which had agreed to cash the draft for the residue of the $3,000. The additional $400 was retained by Mrs. Gilliam, with the consent of the appellees, on her statement to them that she sorely needed that sum in addition to the $1,000 provided for her by the agreement of her husband, as well as that of herself made after his death. So the matter was settled between the parties, and there is no conflict in the evidence as to the fact that Mrs. Gilliam was in full possession of every fact necessary to a full understanding of her rights at the time she executed the paper copied, as well as at the time she gave the appellees a draft for $1,600, the balance in bank. There is nothing in the record to show that the appellees made any fraudulent representation to her as to the effect of any act she did.
The only thing as to which there was a conflict, at all material, in the evidence, was that Mrs. Gilliam stated that the appellees agreed to give her something in addition to the $1,400, to enable her to build a house. This was denied by the appellees, and the court instructed the jury that if they believed from the evidence that this matter was as stated by Mrs. Gilliam, then they would find in her favor for the sum for which she sues. The finding of the jury was for the defendants. Under the conflict of evidence this finding is conclusive on this issue; and as the charge of the court, as to this, was as favorable to the appellant as she could possibly ask, this matter need not be further considered.
This action was brought to recover the $1,600 paid by Mrs. Gilliam to appellees, and...
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