De Leon v. Trevino

• Citation: 49 Tex. 88
• Court: Supreme Court of Texas
• Decision Date: 01 January 1878
• Parties: FRANCISCA SALINAS DE LEON v. MANUEL TREVINO & BRO.

49 Tex. 88

FRANCISCA SALINAS DE LEON

v.MANUEL TREVINO & BRO.

Supreme Court of Texas.

1878.

APPEAL from Cameron. Tried below before the Hon. Edward Daugherty.

July 17, 1871, Manuel Trevino & Bro. sued Manuel Leon De Leon, of Camargo, Mexico, on four promissory notes of date October 8, 1866, executed by defendant, each note reciting that it was “for equal value received in money and merchandise to my entire satisfaction,” the notes amounting in the aggregate, with interest, to $12,977.07.

An attachment was levied. Subsequently personal service was had. Pending the suit, May, 1872, before answer, defendant died.

November 25, 1874, Francisca Salinas De Leon, widow and administratrix of deceased defendant, was admitted as defendant; and she pleaded a general denial, and specially, “that at the city of Brownsville, Texas, on 12th of March, 1864, the plaintiffs made an agreement with the said Manuel Leon De Leon in relation to a large quantity of dry goods which plaintiffs then had in their store, in Matamoras, Mexico, of value of $13,734.27, whereby the said defendant was to take charge of said merchandise, pass it into Texas, and there dispose of it for the joint and equal benefit of himself and said plaintiffs; that it was well understood between the contracting parties that the said goods were to be exchanged for or invested in cotton in Texas, and it shipped to Matamoras, in Mexico, for joint account of both parties.

That in pursuance to the agreement, the said defendant took charge of the said goods at Matamoras, crossed them into Texas, exchanged them for, or invested proceeds of in cotton, which was shipped to plaintiffs at Matamoras; that these transactions were had during the war of the rebellion, and were in aid of the “Confederate States,' and were contrary to, and in evasion of, the laws of the United States; that the notes sued on were given by defendant in settlement of an assumed balance on account, arising out of the said transaction, and being based on an unlawful contract, and for the fruits of a contract to violate the law of the land, have no validity or force as a cause of action.”

A jury was waived. On the trial, plaintiffs read in evidence the four promissory notes, and the defendant offered in evidence the written agreement set up in the plea, after proving the signatures of the parties. The plaintiffs objected thereto, because being attested by two subscribing witnesses, and they nor either had been called. The objection was sustained, and the document excluded.

Testimony of a witness, Tristan Rodriguez, with letters of plaintiffs, were also offered to sustain the further allegations in the plea, and were excluded as irrelevant, the original contract having been excluded.

Over objection, defendant read in evidence a document of date October 8, 1866, signed by plaintiffs, as follows (translated):

“Be it known by the present, that, with our consent and conformity, we have settled the accounts of the business of the expedition to Laredo and the interior of the State of Texas, made on our joint and equal account in profits and losses; and in the liquidation of the portion of losses and merchandise taken by Manuel L. De Leon, he remains indebted to us in the sum of $10,381.73, which he has offered to pay us as follows.” (Following is a description of four notes of same date, and corresponding in other respects with those sued on.)

The court rendered judgment for the amount due on the notes for plaintiffs, and the defendant appealed.

F. E. McManus and Ballinger, Jack & Mott, for appellant, cited 1 Greenl. Ev., secs. 63, 254, 573 b, and note, 577; Crozier et al. v. Kirker, 4 Tex., 252;Burnley v. Rice, 18 Tex., 481;Arrington v. Sneed, 18 Tex., 140.Wm. H. Russell, for appellees.

MOORE, ASSOCIATE JUSTICE.

The only material question presented by the assignment of errors in this case, relates to the exclusion of the evidence offered on the trial in the court below, to prove that the notes, which are the foundation of the action, were given by the appellant's intestate, Manuel Leon De Leon, to appellees, on a settlement and liquidation of a business enterprise, in which said De Leon and appellees, Trevino & Bro., had been jointly engaged, during the war between the United States and the Confederate States, for introducing merchandise from Matamoras, Mexico, into Texas, and its sale or conversion here into cotton, to be transported to Mexico, and which said enterprise, it is alleged, was contrary to public policy and in violation of the law of the United States, &c.

Where competent evidence, tending to establish the truth of the petition or answer, has been excluded by the court below upon an untenable objection made to it by the other party, it is ordinarily no answer to an assignment of error to the ruling of the court, to show that the petition or answer under which the evidence was offered is defective. But where no ground of action or defense whatever is presented by the pleadings, and it is obvious from the nature of the case that the defect could not be cured or avoided by an amendment, and, had the desired evidence been admitted, that the opposite party would have been entitled to a judgment non obstanti veredicto, the error in excluding the testimony is abstract and immaterial, and furnishes no sufficient ground for the reversal of the judgment. Such, we think, is the character of the defense relied upon and sought to be established by appellant in this case.

If it should be conceded, (which, however, I can by no means do,) that the contract between appellees and De Leon for the introduction, during the war between the United States and the Confederate States, of merchandise from Matamoras into Texas, and the purchase and exportation of cotton from Texas to Mexico, without passing such merchandise and cotton through the custom-house of the United States, or a compliance in any way whatever with its revenue laws, or the rules and regulations to which all persons subject to its authority were required to conform, pending hostilities, in all communication or intercourse with the inhabitants of or others within the Confederate lines, should be held to be in violation of the laws of the United States and against public policy, and that neither party to such contract could have obtained the aid of the court for its enforcement, or could maintain an action for a breach of any of its conditions or stipulations by the other, it does not tend to support appellant's defense, and is of no moment in correctly determining the present case.

This action is not founded upon the alleged illegal contract, nor was it brought to enforce any of its stipulations or conditions. The illegal enterprise, if it was illegal, in which De Leon and a...