4 Willson 477 | Tex. App. | 1891
Opinion by
§ 378. Contract made to avoid a lawsuit; fraud or mistake in should he cdleged and proven. This suit was brought in justice court on a note for $105 bearing twelve per cent, interest from maturity and ten per cent, attorney’s fees. Some time after the original contract had been entered into the parties entered into a new one to the following effect, as shown by the evidence of appellee: “ The original note given by me to plaintiffs, and the one hundred dollars for the mule, became due in the latter part of 1888. I saw Mr. Dunbar about the matter, and offered him fifty dollars to give up the original note, and the bill of sale to the mule. This he refused to accept, and insisted upon a full settlement in accordance with the original contract. I told him I was dissatisfied with the machine, because it would not do work. Dunbar insisted the machine would work, and fixed the subsequent day in which to test it.” On the day agreed upon the parties met in Waxahachie, and Mr. Dunbar showed appellee all about the machine, and how it worked, and how to replace ties on a bale of cotton, and, after doing so, demanded payment of appellee of the whole amount, threatening suit if he failed to pay. Appellee told Dunbar he did not wish to be sued, and if he would extend the time of payment of the note, as-he did not have the money to pay it off, that he would pay it when it became due, and, if Dunbar would not sue, he would turn him over the mule, and give him a new note for the balance. To this Dunbar agreed. The note sued upon now was
Eeversed and rendered.