231 S.W. 1082 | Tex. Comm'n App. | 1921
This action was brought by John T. Briscoe against the administrator of the estate of J. M. Bright, deceased, to cancel certain notes which plaintiff had executed in favor of the deceased during his lifetime, upon the ground that the deceased had made a verbal contract with plaintiff to the effect that if the latter would attend to the business of deceased for the rest of his life, as he had theretofore done, deceased would cancel all notes owing to him by plaintiff at the time of his death. Defendant by way of cross-action sought judgment against plaintiff upon the notes. The case was tried twice, each of which trials was by jury and upon one special issue only — whether the contract was made as alleged — and upon each trial judgment was rendered for the plaintiff upon favorable answer to that issue. Appeal from the first judgment resulted in its reversal and a remand of the cause for further trial upon the holding, among others, that the evidence was not of sufficient certainty and clearness to support recovery. 193 S. W. 156. On the
The cause was presented in the Court of ■Civil Appeals upon 16 assignments of error, 10 of which were sustained by that court, and the remaining 6 overruled. The latter need no mention for the reason that they are .not brought before the Supreme Court for review by any assignment or cross-assignment of error. The 10 assignments sustained by the Court of Civil Appeals, eliminating ■duplications, may be grouped under the three following holdings of that court:
(1) That there was a variance between the contract declared upon and the contract proved.
(2) That the| evidence was not of that clear, strong, cogent, satisfactory, and convincing character required to support a judgment in cases of this character. _
(3) That" the relation of plaintiff to deceased being that of attorney to client, and therefore confidential and fiduciary, and deceased being aged and infirm, the contract was unfair, unreasonable, and procured by undue influence, which rendered it nudum pactum.
We will state only sufficient of the pleadings and evidence to make clear our conclusions upon these holdings.
Plaintiff alleged that, beginning with the year 1907, when he began practicing law, and up to the 28th day of April, 1914, he had attended to all of deceased’s business, during which time he had received no compensation for his services. That on the date last named—
“the said J. M. Bright orally agreed and contracted * * * -with this plaintiff that in consideration of the plaintiff having rendered legal services to him in the past, and in consideration of all legal services to be rendered by the plaintiff to him in the future and during the life of said J. M. Brignt, that he, the said J. M. Bright, would pay the plaintiff for same by cancelling all notes and indebtedness owing by plaintiff to said J. M. Bright at the time of the death of said J. M. Bright.”
The notes sought to be canceled were specifically described in the petition.
It was shown that at the time of making the alleged contract deceased was very old and infirm. He had no family of his own, and all his heirs-at-law lived in another state. Plaintiff had transacted all of deceased’s business for a number of years and continued to do so up to the time of his death, which occurred some eight or more months after the alleged contract was made. There was no evidence that deceased ever paid plaintiff anything for any service rendered. The witnesses who testified in support of plaintiff’s allegations were Mrs, Adelia Ray and her husband, A. B. Ray, Mrs. O. G. Newcomb, John H. Snyder and J. O. Stroud. Mrs. Ray had been housekeeper and nurse for deceased for about seven years prior to his death. She married A. B. Ray about two years before deceased’s death, and they both lived with deceased during those two years. Mrs. Newcomb had also been a housekeeper for deceased. Mrs. Ray gave the following testimony:
“As to what conversation I heard between Mr. Bright, before his death, and Mr. Briscoe, with reference to the contract between them, for Mr. Briscoe to continue doing his business, in 1914, on May 28th, Mr. Briscoe came up tnere to pay some interest on his notes, and he said, ‘John, I hate to take this from you, but I have to live, but if you will just continue to pay interest as long as I live, why at my death the notes will be canceled, you will owe me nothing,’ and Mr. Briscoe said, ‘All right, I will do the work for you.’ Which he did, as long as he lived.”
“As to whether he said anything in that conversation about Mr. (Briscoe) continuing to attend to his business as long as he lived, he did; Mr. Bright said, ‘If you will continue to attend to my business, as you have done, as long as I live, at my death you will owe me nothing and the notes will be canceled at my death,’ and Mr. Briscoe said, ‘All right, Mr. Bright, I will do the work for you as I have done.’
“Mr. Bright toldóme before he died that if he never lived to make a will, he wanted me to testify after his death that Mr. Briscoe would not owe him anything, that the notes would all be canceled and Mr. Briscoe would not owe him anything.
“Mr. Bright did not say anything about who would testify to establish my claim; he didn’t tell me who would do that.
“As to what Mr. Bright’s exact words were on that occasion to Mr. Briscoe, I don’t remember. Mr. Briscoe came to pay the interest on his notes, and he said, ‘John, I hate to take this from you, but I have to live, but if you will continue to do my work for me, as you have done, as long as I live, at my death the notes will be canceled and you owe me nothing,’ and Mr. Briscoe said, ‘All right, I will,’ Mr. Briscoe said, ‘All right, Mr. Bright, I will do the work for you, attend to your business for you, as I have done, as long as you live.’ Mr. Bright said, ‘The notes will be canceled and you will owe me nothing at my death.’ I am sure that he said that he would cancel those notes.”
The following is from the testimony of Mr. Ray:
“As to having a conversation myself with Mr. Bi-ight with reference to an understanding between Mr. Bright and Mr. Briscoe, I did. Mr. Briscoe had been up there, I think it was in May, 1914; I don’t know what day of the month it was. He had been up there to.pay some interest on some notes, and Mr. Bright had a conversation with Mr. Briscoe in the presence of my wife, and that evening, that night after supper, we were out on the front porch, sitting*1084 out there, and he went over the matter. He told me what he had told Mr. Briscoe. He said that he wanted Mr. Briscoe to continue attending to his business, and he wanted him to pay interest on those notes as , long as he lived and that at his death the notes would be canceled. These were notes that were due by Mr. John T. Briscoe to Mr. J. M. Bright. This conversation occurred at Mr. Bright’s house after supper, out on the front porch.”
Mrs. Newcomb testified:
“As to when I saw Mr. Briscoe pay Mr. Bright some interest on some notes, that was in December, before Mr. Bright died, which was in March.
“As to what conversation took place between them at that time, when he took the money, Mr. Bright said, T hate to take it, but I have to live.’ That is what he said. He told me that he hated to take the money from John, as he always called him, but, of course, he had to live. He said John was a good fellow, and I don’t know what all he didn’t say, like that; he went on praising him like that, how he had helped him.”
Snyder testified:
“I knew Mr. J. M. Bright during his lifetime. I also know Mr. John T. Briscoe. Mr. Bright died in March, 1915. X was living there at the time of his death.
“As to whether I ever visited Mr. Bright at his home before his death, I went there in 1914, and brought him some plums. When I went there he said, ‘Get down and come here, I want to talk to you.’ Then I stopped and talked a while and said, ‘Mr. Bright,’ I said, ‘You are getting. old to attend to your business.’ ‘Well,’ he said, ‘I have turned it over to John T. Briscoe, turned it over to him. He will attend to my business as long as I live here. I made a contract with him.’ That is so. Mr. Bright said, ‘I will pay him well for it after my death.’ That is what he said. That was the first of June, 1914.”
Stroud testified to a conversation with deceased in which the latter said:
“ ‘John don’t owe me nothing on the lots,’ and he said, ‘When I go down to my grave, John Briscoe’s debts go down in the grave with me; but he won’t owe me nothing when I am dead.’ ”
“The only attention given by Mr. Briscoe to Mr. Bright’s business, shown by the record, is that disclosed by the general statement that Mr. Briscoe stepped into the shoes of Mr. Bright, from which it may be inferred that Mr. Briscoe managed the estate generally, and incidentally borrowed money and bought land from Mr. Bright for which he executed promissory notes.”
Accepting this general statement as substantially correct, still the record does not necessarily present a case of variance. Deceased’s property consisted largely, if not entirely, in lands, in the handling of which the services of an attorney were essential. Whether all the services performed by plaintiff fell strictly within the designation of legal services, we think is not material. No assignment of error was made predicated upon objection to this testimony upon the ground of variance. The contract being verbal, it was. not essential that it be proved in the exact language alleged* It was only necessary to allege a valid contract sufficiently clear in its terms to enable the court to determine what those terms were, and that the contract proved be of like clearness. In other words, eliminating every allegation not substantially supported by evidence and eliminating all proof not fairly alleged, if there be left sufficient evidence of a contract which meets the requirements of the law, then the objection of variance between the allegations and the proof, arising, as it does, upon the sufficiency of the evidence to support the judgment, should be overruled.
“Did J. M. Bright, deceased, on May 28, 1914, in consideration of legal services rendered to said Bright prior to said time and in consideration of such services to be rendered to said Bright down to the time of his death by plaintiff, Jno. T. Briscoe, enter into and make an oral agreement with the said John T. Briscoe wherein the said Bright agreed that he would pay the said Briscoe for such legal services by canceling all notes and indebtedness owing by the said Briscoe to the said Bright at the time of his, the said Bright’s decease?”
Our conclusion is that there was sufficient evidence under the rule contended for to support the finding embodied in that issue.
We conclude that the judgment of the Court of Civil Appeals should be reversed and that of the district court affirmed.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Oourt.
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