Latham v. Jordan

• Decision Date: 12 June 1929
• Docket Number: (No. 1013-5181.)
• Parties: LATHAM et al. v. JORDAN et al.
• Court: Texas Supreme Court

17 S.W.2d 805

LATHAM et al. v. JORDAN et al.

(No. 1013-5181.)

Commission of Appeals of Texas, Section B.

June 12, 1929.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by James O. Latham and others against Cora Jordan, individually and as executrix of the last will of G. W. Jordan, deceased. Judgment for defendant was affirmed by the Court of Civil Appeals , and plaintiffs bring error. Reversed and remanded.

Allen B. Hannay, of Houston, C. G. Krueger, of Bellville, and Ben H. Powell, of Austin, for plaintiffs in error.

W. P. Hamblen and George D. Sears, both of Houston, for defendant in error.

SPEER, J.

James O. Latham and his two sisters sued Mrs. Cora Jordan, individually and as executrix of the last will and testament of her deceased husband, G. W. Jordan, to establish a trust against his estate in the sum of $12,000 with interest. From an adverse verdict and judgment, the plaintiffs appealed and the judgment of the trial court was affirmed. 3 S.W.(2d) 555.

The plaintiffs, by a supplemental petition, had pleaded a letter purporting to have been written by G. W. Jordan to James O. Latham, dated July 24, 1918, which tended to support their contention of trust. This letter was attacked by the defendant as a forgery, and upon the trial the plaintiffs called to the stand Judge John M. Cobb, who testified that he had been attorney for the deceased. Plaintiffs' counsel asked this witness whether or not G. W. Jordan, at any time, ever told him that he had received some money from his father for Ida Latham and her children, and he answered that "G. W. Jordan once told me about getting some money from his mother's estate." He was then asked: "Did you ever make any statement to any one, either written or verbal, about this matter that G. W. Jordan talked to you?" And he replied, "I think Oliver (plaintiff) wrote me about it and I told him Jordan had told me something to that effect." Whereupon counsel for plaintiff added: "The statement that you made to Oliver was what G. W. Jordan told you and it was in writing?" To which the defendant objected upon the ground that the same was immaterial and irrelevant and an effort to impeach the plaintiff's own witness and the court sustained the objections. Counsel for plaintiff then handed the witness the following letter:

                                       "December 15, 1923
                

"Mr. J. O. Latham, 206 Linz Building, Dallas, Texas. Dear Oliver: Replying to your recent favor relative to a conversation we had some years ago, will state that I do remember that Mr. G. W. Jordan, a number of years ago, after a trip to Alabama, told me that he had some money that he held in trust for the Latham heirs, his nephews and nieces back in Alabama and that he was either going to loan the same out or invest the same in good securities such as government bonds. I cannot state the amount and if he ever told me, the amount of it has escaped my memory. This is all I know about it.

                     "Yours very truly
                "JMC/V                       Jno. M. Cobb,"
                

and asked him if, he wrote that letter, to which question the defendants objected that it was an attempt to impeach the plaintiffs' own witness. Whereupon counsel for plaintiffs explained that it was the object and purpose of the plaintiffs to have the witness examine the letter and to refresh his memory on the subject to which it related and the matter under investigation. But the court sustained the objection and refused to let the witness read the letter and refresh his memory on the subject, to all of which the plaintiffs excepted.

We think the ruling was error. The letter was not offered at this stage of the trial for purposes of impeachment, but for the purpose of enabling the witness to refresh his memory and further to testify with respect to the transaction. That such a proceeding is permissible is well settled. To refresh the witness' memory is not in any sense to impeach or even to contradict him. Sparks v. Johnson (Tex. Civ. App.) 235 S. W. 975; Dallas, etc., Co. v. McAllister, 41 Tex. Civ....