San Antonio Lumber Co. v. Dickey

• Decision Date: 10 October 1894
• Citation: 27 S.W. 955
• Parties: SAN ANTONIO LUMBER CO. v. DICKEY.
• Court: Texas Court of Appeals

27 S.W. 955

SAN ANTONIO LUMBER CO. v. DICKEY.

Court of Civil Appeals of Texas.

October 10, 1894.

Appeal from Wilson county court; A. D. Evans, Judge.

Action by the San Antonio Lumber Company against J. W. Dickey. Judgment was rendered for defendant, and plaintiff appeals. Reversed.

C. K. Breneman and B. F. Ballard, for appellant.

JAMES, C. J.

The suit originated in the justice's court, plaintiff claiming a balance of $185.20 principal and $54.16 interest on an obligation worded as follows: "$730.00. Floresville, Wilson Co., Texas, Feb. 9, 1886. Due the San Antonio Lumber Co., of San Antonio, Texas, seven hundred and thirty dollars on settlement this day, value received. J. W. Dickey." There was no denial of the execution of this instrument. The defense offered was that the paper purporting to be a duebill was given to plaintiff simply as a memorandum, and not as evidence of an amount due by defendant to plaintiff; that when it was given it was understood and agreed that it was only a memorandum, and that the amount it called for should be reduced by any sums that might afterwards be found defendant was entitled to in connection with the contract under which plaintiff agreed to furnish, and had furnished, defendant with lumber and material; but defendant had since found that plaintiff had charged him a higher and entirely different rate than had been agreed on; and, after considering payments made by defendant, that plaintiff was indebted to defendant in the sum of $257.30, for which he asked judgment. The case went to the county court on appeal, and was there tried on the same pleadings before a jury, resulting in a judgment in favor of the defendant for the sum of $50. It does not appear from the answer that the agreement mentioned in it was oral, and under it a written agreement might have been proved. It was not, therefore, subject to demurrer, for, if it had been proved to be in writing, it would be considered in connection with the instrument sued on, and be given its proper force. It was shown on the trial that it was oral, and the court was evidently of the view that it was proper to give effect to it. This was error. There was no indefiniteness or ambiguity in the expressions of the paper. It evidences a settlement between the parties, and, as the evidence discloses this settlement related to the sale of lumber and material, it was an admission of indebtedness to plaintiff of a certain sum in reference thereto, and is, in effect, a...