Newsom v. Fikes, 13913.
| Decision Date | 11 July 1941 |
| Docket Number | No. 13913.,13913. |
| Citation | 153 S.W.2d 962 |
| Parties | NEWSOM v. FIKES. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.
Action by Mozelle Newsom against Leland Fikes for alleged breach of trust and other relief. From judgment upon an instructed verdict for defendant, plaintiff appeals.
Affirmed.
Frank C. Bolton, of Henderson, and Austin F. Anderson, of Fort Worth, for appellant.
McGown, McGown, Godfrey & Logan, B. E. Godfrey, and John M. Scott, Jr., all of Fort Worth, and W. C. Hancock and Edwin M. Fulton, both of Gilmer, for appellee.
This is one of the three suits, instituted by some of the heirs of Mattie Moseley, mentioned in our opinion of this date in cause No. 14073, Nealie Smith et vir v. Leland Fikes, 153 S.W.2d 977. Appellant, Mozelle Newsom, is the sole heir of Young Moseley. This suit involves the identical written instruments which were involved in the William Moseley case. See Moseley v. Fikes, opinion by this court, 126 S.W.2d 589, and Fikes v. Moseley, opinion by Judge German, adopted by the Supreme Court, 151 S.W.2d 202, for a full statement of the facts surrounding the transaction, and for the text of the instruments involved.
Many of the questions raised in the present case are concluded by the opinion of the Supreme Court in the William Moseley case, supra. It is our view that appellant's propositions 1 to 17, inclusive, 30 to 36, inclusive, 38 and 39, are either concluded or rendered immaterial by the Supreme Court holding just mentioned; and we likewise consider that appellee's counter-propositions 6 to 16, inclusive, and 18 to 30, inclusive, raise questions which are either settled or rendered immaterial by the holding in the William Moseley case.
In the present case, the trial court instructed a verdict for the defendant, from which plaintiff appealed.
Defendant contends that the action of the trial court is sustainable, if for no other reason, upon the ground that the letter from Fikes to William and Young Moseley was not actually introduced in evidence in the present case. Both parties pleaded the existence and effect of the letter. Defendant's counsel made objections and other remarks during the course of the trial, as reflected by the statement of facts, which to our minds indicate that the letter was being treated as in evidence, and the letter appears in the statement of facts as an exhibit, alhough there is not to be found in the statement of facts any formal statement of plaintiff's counsel introducing the letter in evidence. The statement of facts has appended to it an agreement in writing, signed by counsel for both parties, reciting that "* * * the foregoing 154 pages constitute a full, true and correct transcript of the testimony had and evidence adduced upon the trial * * *." It is clear to us that both parties to the suit, as well as the trial court, treated and considered the letter as being in evidence during the trial of the cause, and we shall so treat it. Also, it has often been held that it is not necessary to prove a fact which has been alleged by both parties in their pleadings. Edwards v. West Texas Hospital, Tex.Civ.App., 89 S.W.2d 801; Blair v. Blair, Tex.Civ.App., 105 S.W.2d 331. This disposes of appellee's first counter-proposition.
Defendant pleaded in defense of the action that several months subsequent to the date of the instruments sued upon he made a settlement with Young Moseley, whereby he paid to Moseley a total of $310.00, and received from Moseley a deed to the property in question, and a release in writing of any and all claims which Moseley might have against him. Plaintiff did not deny under oath the execution by Young Moseley, her father, of either of these instruments, but pleaded, and here asserts, that the deed and release constituted transactions with the deceased, in contravention of Article 3716, R.C.S. Plaintiff has misconstrued the effect of this statute. It does not prevent parties from relying upon instruments in writing which were executed by the deceased, as a basis of either recovery or defense. It prevents the parties themselves from testifying concerning the transactions with the deceased. Olschewske v. Priester, Tex.Com.App., 276 S.W. 647; Jones v. Selman, Tex.Civ. App., 109 S.W.2d 1003, writ of error dismissed. Defendant Fikes did not testify concerning either of these instruments. He did not have to do so. The...
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Graser v. Graser
...v. Smith, Tex.Civ.App., 200 S.W. 540, pt. 2 and authorities; Reiser v. Jennings, Tex. Civ.App., 143 S.W.2d 99, pt. 1; Newsom v. Fikes, Tex.Civ.App., 153 S.W.2d 962. In a suit to construe and enforce a written instrument, such as is here involved, it is the duty of the courts to arrive at th......
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