11 Tex. 211 | Tex. | 1853
The defence rested on the alleged refusal of the plaintiff, to assign to the defendants, the unsatisfied balance of his judgment against Whiting, and the conversion of it to his own use; and the question to be determined is, whether this defence was sustained by the proof. This must depend mainly on the conclusions of fact, to be deduced from the evidence.
The original agreement, entered into at Austin, between Smith and Chalmers, contained the stipulation that the former should assign to the latter the judgment in question. The reason assigned by him for refusing to do so, when called upon by Chalmers to execute their agreement, was that when he accepted the proposition of the latter, he was not aware that it contained that stipulation. The evidence, however, will not warrant that conclusion. But whether he knew of the stipulation or not, is immaterial, if no deception was practiced upon him, and bytheuse of ordinary diligence he might have known. There is no evidence that he was deceived or misled by any misrepresentation or concealment of the fact. If mistaken as to the terms of the proposition, it must be ascribed solely to his own carelessness or inattention; and for the consequences of these, the party is himself alone responsible. They afford him no ground of relief against the stipulations of his contract. There can be no question that, upon the evidence before us, the undertaking to assign the judgment in question, was obligatory upon the plaintiff; and is still binding upon him, unless he has been released from its performance. So far as Chalmers was concerned, he unqestionably did release* the plaintiff; whether absolutely, or conditionally, may admit of some doubt. From the whole evidence, however, I incline to the opinion that it was intended and understood to be an absolute release so far as Chalmers was concerned. He was acting as the agent of the other contracting parties; and though he did not undertake to bind them absolutely, but only in case they assented, yet when he apprised them of what he had done, and that the plaintiff had executed the contract in
It, becomes necessary, therefore, to inquire whether the defence is made out, in so far as it seeks to charge the plaintiff with the amount of the judgment in question. And we are all of opinion that it is not. The proof fails to establish that the plaintiff has collected any part of the judgment; or that he has in any manner appropriated or converted it to his own use. There is no evidence that the plaintiff has derived any benefit, or that the defendants have sustained any injury whatever, in consequence of his failure to make the assignment.
After the release of the plaintiff by Chalmers, he does not appear ever to have been called on or required to assign the judgment. Nor do we hear of any complaint of his failure to do so, until the notes became due, and the plaintiff was urging their payment. After what had passed between the plaintiff" and Chalmers, respecting the release, the defendants ought to have notified the plaintiff that they did not assent to the release, but would require him to make the assignment. They do not appear, however, to have given the plaintiff any notice of their intentions, until they were themselves in default in making payment; and they then only urged the non-assignment of the judgment as an inducement to a compromise. It appears that the defendants might then have had the judgment assigned to them, upon performance of their part of the contract. But they seem not to have desired it. Indeed, the judgment appears to have been regarded by all parties as of very doubtful value ; and the evidence goes far to warrant the conclusion that, in truth, it was and still is wholly worthless. It seems at least clear, that since it became the subject of controversy, no one has or could have derived any benefit from it.
Judgment re-formed.