289 S.W. 102 | Tex. App. | 1926
Dr. M. I. Leff brought this suit against Mrs. Myrtle Adams, in her representative capacity as independent executrix of the estate of Pete Adams, deceased, to recover on an alleged balance of an account for medical services rendered deceased. The case was tried without the aid of a jury, and judgment was rendered, denying any relief.
The court sustained a special exception to the petition as alleging an account in compromise of the amount sued for, and plaintiff in error excepted. The petition alleges, in substance, that the full account of the services rendered to deceased was of the reasonable value of $711, and alleges in the alternative that he submitted an account for services rendered in the sum of $650, and the defendant agreed and promised to pay and plaintiff agreed to accept the sum of $650 for the services so rendered, and that thereafter defendant in error paid on said account the sum of $350, leaving a balance of $300, which defendant has refused to pay, though often requested. We think the petition was not subject to the special exception as stating an offer in compromise of the balance due on the account.
Plaintiff then undertook to prove his claim as itemized, under his first count. The propositions submitted, other than those we will discuss, are directed to the rulings of the court on the tender of evidence under the first count. We think it necessary to discuss only such as might arise on another trial, should plaintiff in error try his cause on the second or alternative plea of an express agreement to pay and to accept in payment for the services rendered the balance of $300. If such agreement was entered into, and in part carried out, as alleged, we see no reason why both parties should not be bound thereby.
We think the evidence of the witness Weisiger, and the letter written by witness, should have been admitted. It is to the effect that the witness was the attorney for the estate of the deceased; that defendant in error authorized him to write the letter offered in evidence, and to send inclosed to plaintiff the check for $350, with promise to remit the balance of the account at a later time. The witness did write the letter and inclosed the check, which plaintiff alleges he accepted under the agreement that the full account for the services rendered should be $650. The tendered evidence was excluded on the theory, as we understand it, that the petition stated only a compromise proposition for settlement of the account.
A valid compromise agreement, as alleged, though partly executory, operates as a bar to the full account as it formerly was, and the suit would be on the unpaid balance as agreed. 12 C.J. p. 314, and cases cited. We think the plaintiff should have been permitted to have tried his case and offer his evidence on his second count.
For reasons indicated, the case is reversed and remanded. *103
