70 Tex. 620 | Tex. | 1888
As the administratrix of the estate of S. B. Spotts, deceased, the appellee brought this action to recover the sum due on a promissory note executed by the appellant to the deceased on December 11, 1882, and due one year after its date.
It is urged that the court erred in admitting testimony offered to show that the appellee was the administratrix of the estate she assumed to represent. It is unnecessary to inquire whether the evidence was properly admitted, for there was no plea put
There was a plea of want of consideration for the note, which contained much irrelevant matter, of which evidence was admitted, and after this the appellee was permitted to testify that in a conversation between herself and the deceased, when the appellant was not present, the deceased stated that the appellant acknowledged the note sued upon to be a just claim against him, and admitted that it was justly due for a horse that had died through ill usage by the appellant, and that he would certainly pay it or secure it. This testimony was objected to on the ground, among others, that it was hearsay. The judge of the district court seems to have thought that it was admissible in rebuttal of testimony offered by appellant.
There was testimony offered by appellant that theo court would no doubt have excluded had it been objected to, but the fact that improper evidence was admitted without objection did not authorize the admission of improper evidence, even in rebuttal, when objection was made to it.
The evidence admitted over objection was clearly inadmis ■sible, and should have been excluded. In view of the further disposition of the case, we deem it proper to say that the note sued on, evidences the contract of the parties, and under the pleadings all evidence as to parol cotemporaneous agreements between the appellant and the deceased affecting the contract evidenced by the note, and tending to vary or contradict it, should be excluded. The note fixes the obligation of the appellant to pay,, and his pleadings leave open to him only the defense that it was executed without consideration. Evidence' tending to support that defense is admissible. If the deceased had in his custody a horse belonging to another person, which, without permission of the owner, he loaned to the appellant who injured it, or if there was a claim that he had injured it and the note in suit was given in settlement for the injury or claim of injury, then it can not be said that the note was without consideration.
As the custodian of property bound to the exercise of proper care for its safe keeping, the deceased would have been liable to the owner for an injury resulting from his want of proper care, and if. one having possession of it, with his permission, injured it, we do not see but that a note given in settlement of such injury would not be a sufficient consideration.
If the deceased loaned the horse of which he was the bailee, this was upon an implied contract that the borrower would not injure it, but use it carefully, and for breach of such implied contract the bailee doubtless might have maintained an action to recover from the borrower for any injury done to the property for which the bailee would be liable to the owner. (Story on Bailments, 93c, 93b; Addison on Torts, 631, 1292.)
In any case in which a bailee may maintain an action for an injury done to property placed in his custody, he surely may take a note in settlement for the same facts which give a right to recover in an action by a bailee give sufficient consideration to support a promise.
It is unnecessary to consider whether the charge given was in all things technically correct.
The appellant asked the following charge: “If the jury believe from the evidence that the defendant executed the note in question with the understanding that he was never to pay the same, and that it was not to be transferred or assigned, they will find for the defendant.” It was properly refused; for the note is conclusive as to what the real contract between the parties was.
The charge asked is based on evidence admitted to show the parol contemporaneous agreement/ which, as we have before said, ought not to have been received, but having been received, should have been disregarded as was it, in effect, by the charge given.
For the error in the admission of evidence before referred to, the judgment will be reversed and the cause remanded.
Reversed and remanded.