293 S.W. 180 | Tex. App. | 1927
This suit was filed in a county court of Harris county by appellant, Giles, on December 10, 1921, against appellee Corbett, to recover certain items of court costs amounting to $458.75 which Corbett and a surety were obligated to pay by the terms of an injunction bond they had executed in a prior litigation between appellant and appellee Corbett. Two days later appellant, Giles, and appellee Corbett, verbally agreed to compromise and settle a foreclosure suit then pending in a Harris county district court to which they were parties. Under this verbal agreement each was to deed, or cause to be deeded, to the other or his nominee, certain lands or interest in lands, and appellee Corbett was to pay $1,118 to appellant, Giles, to reimburse him for taxes he had paid. There was no dispute as to the amount of the taxes. At the time this verbal agreement was made appellee Corbett did not know that the instant suit against him was pending, as citation had not been served. When it was discovered that the suit at bar was pending, appellee Corbett, through his attorney, prepared and submitted for Giles' signature a release, which contained a provision discharging Corbett from all liability to Giles, which release was broad enough to include the instant suit for costs. Appellant, Giles, declined to execute this release in that form, because the suit at bar was not mentioned when the verbal agreement to compromise and settle the foreclosure suit was made, and for this reason Mr. Giles' attorney modified the proposed release, the material change being the addition of the words italicized, thereby making it to read:
"I, William Giles, of Houston, Harris county, Tex., acknowledge receipt from W. C. Corbett in the sum of one thousand and one hundred and eighteen dollars ($1,118.00), in reimbursement of taxes paid by me as per receipts attached hereto. This sum of money is paid as part of a final settlement this day had between W. C. Corbett, Mrs. W. C. Corbett, and the Union Land Company and myself, by the terms of which the said Corbett and wife have conveyed me their right, title, and interest in certain tracts of land near Cypress, in Harris county, Tex., out of the Evan Thomas and James Brewster surveys, and by the term of which I have agreed to convey to them six (6) sections of land in Crockett county, Tex., and by the terms of which I have agreed to convey to Mrs. W. C. Corbett and Union Land Company a certain judgment this day rendered in cause No. 78192 in the district court of Harris county, Tex., said judgment in my favor and against W. C. Corbett. The purpose of these transactions is to effect a complete and final settlement of all matters between W. C. Corbett, Ella M. Corbett, Union Land Company, and myself, involved inthe above suit and judgment, and I hereby acknowledge full payment and satisfaction of all indebtedness from W. C. Corbett, Ella M. Corbett, and Union Land Company to me involved therein, releasing to Mrs. W. C. Corbett the judgment aforesaid and the lands in Crockett county described therein: Provided, however, that this shall not relieve the defendants in said suit and judgment from liability for the payment of the court costs adjudged against them therein."
In the final exchange of papers, Corbett, through his attorneys, accepted this release as modified, and Giles, through his attorney, accepted from Corbett a check for the $1,118 (the amount of the taxes), on which was noted, "In full settlement to date," and a letter from Corbett's attorney to Giles' attorney reading as follows:
"In our settlement of this case Monday, it was my understanding that it adjusted all differences between Mr. Giles, and the Corbetts and the Union Land Company. Mr. Corbett was very explicit in requiring me to have such an understanding, and I prepared a paper supplementing the other papers that you and Mr. *182 Cosby had prepared, in which paper I made a general statement broad enough to effect a complete settlement. I was unacquainted with the details of the prior litigation and did not know of the existence of the claim for cost growing out of a former lawsuit which has since been discussed between us.
"Mr. Corbett left my office Monday after he had seen and approved the paper that I had prepared and left the city the same day and I have not had an opportunity to discuss the matter with him and to know his version of the claim for cost which is now being asserted. I had no intimation that a suit had been filed against Corbett last week and certainly had I known this I would have stipulated for its dismissal in the settlement we made Monday morning.
"I do not desire to have this large settlement broken up by a trifling incident like this small sum of cost, but since Corbett's instructions to me are very explicit, I have no latitude except to close the settlement with the understanding that Mr. Giles will not press any claim against W. C. Corbett or Mrs. W. C. Corbett or the Union Land Company for these costs and that this is a full settlement of all matters between them. With that understanding I am asking Mr. Cosby to deliver you the deed to the Cypress land and the check which Mr. Corbett left with me on December 12th."
Appellant, Giles, indorsed and cashed the check. In the verbal conversations that took place at and prior to the time these papers were exchanged appellant, Giles, never did assent to the proposal that the instant suit for costs was to be included in the settlement. The learned trial court found that the debt for costs asserted in the instant suit was barred by reason of Giles' indorsing and cashing the check bearing the notation, "In full settlement to date."
The check bearing the notation, "In full settlement to date," accompanied by the letter, having been received by appellant in exchange for the release, all being a part of the same transaction and having for their purpose to effect a compromise and settlement, they are "in the eye of the law one instrument and will be read and construed together as if they were as much one in form as they are in substance." 6 R.C.L. p. 850, par. 240; Barber v. Herring (Tex.Com.App.) 229 S.W. 472; Ferguson v. Dodd (Tex.Civ.App.)
We overrule appellant's assignments attacking the admissibility of the letter. It was, under the circumstances clearly admissible in evidence. Hunt v. Ogden,
Appellant asserts that the parties did not include the instant suit in the compromise settlement. This requires us to construe the documents which we have found went to form the agreement. The question is not free of difficulty. The court has concluded that a compromise and settlement was effected that bars the right to recover in the instant suit. While it is true appellant in the release receipted only for the debts involved in the foreclosure suit, and by the terms of the instrument did no more than effect a settlement of the matters involved in that suit, he at the same time accepted and cashed the check bearing a notation that it was "in full settlement to date" in the face of the letter from Corbett's attorney saying that he had "no latitude except to close the settlement with the understanding that Mr. Giles will not press any claim against W. C. Corbett or Mrs. W. C. Corbett or the Union Land Company for these costs and that this is a full settlement of all matters between them."
One of the fundamental rules of construction is that the contract should be considered as a whole. When thus considered, if the contract is susceptible of a reasonable construction whereby all provisions can be given effect, then that is the correct construction. The release does not refer to the instant suit. The check and letter, however, do, in express terms, bar the suit. When the contract is construed as a whole, we think the letter and check add to and supplement the release. They add in plain and explicit terms another provision without contradicting any part of the release. 6 R.C.L. p. 837, § 227. Appellant was bound to accept the check upon the terms proposed in the letter or reject it. When he received and cashed it there was an acceptance of the proposal, even though he protested. 12 C.J. 320.
Appellant also assailed the trial court's judgment because the $1,118 check, being in payment of an undisputed debt for taxes, could not form the consideration for an accord and satisfaction of the liquidated demand asserted in the instant case. As an abstraction, this may be correct, but does not apply under the facts of the case, because the payment of the taxes and the settlement of the instant suit for costs were only a part of the consideration for the compromise and settlement. There was consideration by reason of the exchange of deeds to realty. 1 R.C.L. p. 189, § 21.
It is unnecessary for us to consider appellees' cross-assignments of error.
Affirmed.
Jas. W. WAYMAN sat as Special Associate Justice in place of LANE, J., disqualified. *183
