Kelley v. Ward

• Decision Date: 17 January 1901
• Parties: KELLEY et al. v. WARD.
• Court: Texas Supreme Court

Page 311

60 S.W. 311

KELLEY et al. v. WARD.

Supreme Court of Texas.

January 17, 1901.

Error from court of civil appeals of Second supreme judicial district.

Action by J. C. Ward against M. A. Kelley and others. A judgment for plaintiff was affirmed by the court of civil appeals (58 S. W. 207), and defendants bring error. Affirmed.

J. A. Templeton and Allen & Allen, for plaintiffs in error. W. W. Flood and A. A. Hughes, for defendant in error.

WILLIAMS, J.

After a judgment of the district court in favor of the present plaintiff in error, then Mrs. Wilson, against defendant in error, had been reformed and rendered by the court of civil appeals, and affirmed by this court, as will appear in 43 S. W. 834, and 92 Tex. 22, 45 S. W. 8, this action was begun by defendant in error to set aside that judgment, and reform the agreement on which it was based, so as to free him from the personal liability thus established against him. The grounds upon which this relief was sought were, among others, that the written agreement, by the fraud of the other party to it, or through the mutual mistake of both parties, had been made to embody the provisions making him personally liable for the debt, when such was not the contract as agreed upon, and that by such mistake or fraud, without negligence on his part, he had been prevented from presenting his defense before the rendition of the judgment, which, although it recited that he was present at the trial, was in fact rendered in his absence, and without his knowledge. The cause was submitted to the jury upon special issues requested by the parties, to which answers were returned, on which the court gave judgment for the plaintiff, granting the relief sought. The court of civil appeals, on appeal, affirmed this judgment, and the case is before us on writ of error from the judgment of affirmance.

The material questions raised relate to the admission of testimony, and the sufficiency of the evidence and of the special verdict to authorize the judgment. There are many assignments of error complaining of the submission of particular issues as immaterial, but these cannot affect the disposition of the case, inasmuch as the finding of immaterial facts cannot be made ground for reversal, if the judgment is not in conflict with the findings upon material issues. The agreement upon which the judgment sought to be reviewed was based, as well as the history of the suit in which it was made and filed, will be found in the two reports before referred to.

Upon the trial of the present case, it was developed that the judgment was rendered in the absence of Ward, the present plaintiff, and without any notice to him, other than the agreement itself gave, of a purpose to set it up and ask judgment upon it. As an explanation of his failure to watch the progress and disposition of the former suit, there was evidence tending to establish the following facts, about many of which, however, the testimony sharply conflicted: That prior to the making of the agreement there was no claim that Ward was personally liable to Mrs. Wilson, the plaintiff in the former suit, for the purchase money of the land therein sought to be recovered, since he only claimed a part of such land through mesne conveyances from vendees of the maker of the note sued on to whom Mrs. Wilson had originally sold, and was made a party merely for the purpose of securing a foreclosure of the lien or a recovery of the land for nonpayment of interest according to the original contract of sale; that an oral agreement was made between Ward and Wilson, which did not create a personal liability, in any contingency, for any part of the purchase money, but simply provided that the default of other subvendees in the payment of interest should not cause a forfeiture of the original contract of sale, so far as Ward was concerned, but that there should be a foreclosure of the lien as against the holders of other parts of the sections of which Ward held a part for the proportion of the purchase money equitably chargeable against such other parts, and that they should be sold thereunder, and that Ward should have the right to attend the sale, and make them bring the amount with which they were chargeable, and, in case of there being a balance unpaid, it should constitute a charge upon his land; and that upon such balance, and upon the other part of the purchase money chargeable against his land, he should have the right to continue to pay interest until 1901, the time of the maturity of the principal of the original purchase-money notes, or, in case he should not choose to do this, he might reconvey the land. This agreement, according to the evidence most favorable to plaintiff, was stated by Mrs. Wilson and Ward to their attorneys, and the attorney for Mrs. Wilson undertook to reduce it to writing, and produced the instrument in question, by which, as it has been construed, Ward was made personally liable for any balance of the purchase money of the lands of other parties which should not be realized by the sale of their interests in the land. Ward's attorney was present while the agreement was being prepared, and read it over, and Ward himself heard it read; but the jury found, as we construe their verdict, that none of the parties understood the written instrument, at the time of its execution, as binding Ward to pay any part of the purchase money. The agreement was filed in the pending case, and on the same day the case was continued on written application of other defendants than Ward, which stated that the case as to Ward was settled. The testimony for the...