Newman v. Blum

• Decision Date: 11 June 1888
• Citation: 9 S.W. 178
• Parties: NEWMAN <I>et al.</I> <I>v.</I> BLUM <I>et al.</I>
• Court: Texas Supreme Court

Page 178

9 S.W. 178

NEWMAN et al.v.

BLUM et al.

Supreme Court of Texas.

June 11, 1888.

Commissioners' decision. Appeal from district court, Travis county; A. S. WALKER, Judge.

Action by Leon and H. Blum against Newman & Co. and Moses & Son, to recover $1,062. Plaintiffs alleged that they were creditors of one A. T. Haber in the sum of $15,121.37, and that they sold their claim to defendants for 65 cents on the dollar; that the claim was transferred by a written instrument, which erroneously stated the amount of the claim to be $13,487.50; and that the instrument provided that any mistake which might be thereafter discovered in favor of either party should be corrected. The mistake in the account was by reason of the omission of 10 per cent. counsel fees due plaintiffs by Haber, by reason of the debt having been placed with attorneys for collection. Defendants answered by general and special demurrers and general denial; and specially answered that they admitted the execution of the contract sued on, but denied that any mistake was made in the amount of the Haber claim; that, being desirous of purchasing the claim of plaintiffs against Haber, they offered plaintiffs therefor the sum of 60 cents on the dollar, which plaintiffs declined, because counsel fees were due by reason of suit having been brought against Haber by plaintiffs; that plaintiffs then agreed to sell said claim for 65 cents on the dollar; that said extra 5 cents was to be in full satisfaction of counsel fees; that defendants then bought the claim of plaintiffs against Haber at 65 cents on the dollar of the original debt, and said purchase was to be a full satisfaction of plaintiffs' claim for counsel fees; that the claim for counsel fees was not omitted by mistake, but in pursuance of the above agreement. The court below gave judgment for plaintiffs for $1,216.95. Defendants appealed.

R. H. Ward, for appellants. D. W. Doom and Peeler & Peeler, for appellees.

COLLARD, J., (after stating the facts.)

It is evident the plaintiffs could prove there was a mistake in the amount of their debt. The written agreement expressly left that part of the transaction open and subject to correction, but our construction of the writing is that it fixed by its terms the rate of payment of their debt, whatever it might prove to be, at 65 cents on the dollar. The writing having stated in what particular it might be corrected, thereby implied that it could not be corrected in other respects upon the...