Robertson v. Smith

• Decision Date: 01 January 1853
• Citation: 11 Tex. 211
• Parties: ROBERTSON v. SMITH.
• Court: Texas Supreme Court

11 Tex. 211

ROBERTSON

v.SMITH.

Supreme Court of Texas.

1853.

A party to a contract will not be relieved against a mistake which has resulted from his own care-lessness and inattention, where there has been no misrepresentation or concealment by the other party.

Where an executory contract of sale of several articles of property, including a judgment, was made by and between a seller and four purchasers, one of the latter acting for himself and co-purchasers, and afterwards, when the active purchaser called upon the seller to execute the contract of sale, the latter refused to assign the judgment, on the ground that he did not understand it to be included and was misled, whereupon the active purchaser agreed to release the seller from transfer ring the judgment, provided his co-purchasers (who were several hundred miles distant) would as sent to it and the active purchaser received the other articles, and his co-purchasers received them also, expressing their dissent however, of which no notice was given to the seller, it was held that the purchasers, when sued for the purchase money, could claim an assignment of the judgment, but no more.

When A was the plaintiff in a judgment but there was a question whether B had not become the purchaser of it, and the latter caused execution to be issued, which he sent to C with directions to call upon A for instructions, and A replied, when so called upon, that he did not know whether he was the owner of the judgment or not, and refused to give any instructions upon the subject, and C, acting under instructions from B, levied upon and sold property to which the defendant in execution had no title, becoming himself the purchaser in the name of the plaintiff, whereby the judgment was satisfied; Held, That C was the agent of B, and not of A.

Appeal from Travis. The appellee brought suit against the appellant, jointly with Webb & Horton and the heirs of Chalmers, on certain promissory notes, and a mortgage given to secure their payment.

The defendants answered, in substance, that the notes were given in the execution of a contract in writing, for the purchase of certain lots with the erections thereon, in the city of Austin, and also a printing press, and a judgment and mortgage which the plaintiff had, before that time, obtained against one Whiting, on which there remained due about three thousand dollars; that, by said contract, the plaintiff undertook to convey the said property and assign the judgment, etc., to Chalmers, in consideration of the sum of four thousand five hundred dollars, to be secured as specified in the contract, which is referred to and made a part of the answer; that, in making the contract, Chalmers acted for himself and as agent of the defendants. They averred that they complied with the stipulations of the contract on their part; but that the plaintiff had failed and refused to comply with his contract to assign the judgment, and had collected the same, and applied the proceeds thereof to his own use. Wherefore they claimed that the amount of the judgment should be deducted from the notes sued on; and they prayed “such order and judgment of the Court, as shall seem equitable,” etc.

The contract referred to in the answer, was given in evidence by the defendants, and is as follows:

“I will give you $4,500 for the property in Austin, purchased at the sale by you, you transferring the judgment and mortgage against Whiting to me, divided into three equal annual instalments, with interest on the two last payments, to commence from the day of sale. I will give such personal security as will be good, besides a lien on the property to secure the payment of the purchase money; the rent from Pipkin to be yours. I will want four weeks to get such other personal security as may be required, besides those of Travis county.

To Doct. W. R. Smith,

+----------------------------+
                ¦(Signed)¦JOHN G. CHALMERS.” ¦
                +----------------------------+
                

“I accept the above proposition, to be closed according to the above terms.”

+-------------------------+
                ¦(Signed)¦“WM. R. SMITH.” ¦
                +-------------------------+
                

The defendants gave in evidence the following instrument:

“I have this day sold to Dr. Chalmers the house, press, etc., purchased at the mortgage sale, on the 2d of this month, formerly belonging to Samuel Whiting; and he is hereby authorized to take entire possession of the said premises. The consideration of said transfer is four thousand five hundred dollars. Austin, September 4th, 1845.

+------------------------+
                ¦(Signed)¦WM. R. SMITH.” ¦
                +------------------------+
                

Gillespie, a witness for the defendants, testified that two or three days after the sale referred to, as made on the 2d of September, 1845, the plaintiff called on him, with the proposition contained in the instrument first above set out, and asked if anything more could be made on his Whiting judgment, to which the witness answered, there could not. He then stated to witness, that Webb, Robertson and Horton were the sureties named by Chalmers, and inquired as to their solvency. On being assured of their solvency, he said that the forty-five hundred dollars would about cover his claim, and that he would let them take the whole concern.

Hunt, also a witness for the defendants, testified that in the fall of 1845, he met Dr. Chalmers in Galveston, and was told by him that he had come there for the purpose of closing a contract with Dr. Smith, for the purchase of lots, houses and a printing press in the city of Austin, and a judgment held by Smith against Whiting; that Smith refused to transfer the judgment, alleging that he did not so understand their agreement. The witness was afterwards called on to witness an understanding between the parties, by which Chalmers agreed to release Smith from transferring the judgment, provided the other parties, Webb, Horton and Robertson would assent to it; and upon that understanding the contract was executed.

Ayres, also a witness for the defendants, testified that the defendant Webb sent him for collection an execution issued on the Whiting judgment in favor of the plaintiff, with directions to call on the plaintiff for instructions as to its collection. He did so, when the plaintiff said he did not know whether he was the owner of the execution or not; that it depended entirely on Judge Webb; that if it was to endanger the prompt payment of his debt (the same secured by the notes sued on), he would have nothing to do with the execution; and he refused to give the witness any instructions respecting the execution. The witness had been employed by the defendant Webb, to negotiate a release of the defendants from their obligation upon the notes now in suit. He did not ask the plaintiff to assign the judgment, because he was desired by the defendant Webb not to do so, but to effect a compromise. All his negotiations with the plaintiff were with that object. He was to ascertain for what sum the plaintiff would consent to keep the property conveyed, and release the defendants; and to accomplish his purpose, and induce the plaintiff to compromise, he urged upon him that he had not complied with his contract, in respect to the judgment, and could not compel performance on the part of the defendants. The plaintiff denied that he ever contracted to assign the Whiting judgment; said that when he accepted the proposition, he did not understand that it contained that stipulation or he would not have signed it; that he did not read the proposition- it was read to him, and he was deceived, etc.; that he had had an understanding with Dr. Chalmers, who agreed to release him, and he considered himself released, otherwise he would not have executed the contract-- but that he had never refused to assign the judgment.

The...