203 S.W. 65 | Tex. App. | 1918
It is believed, as insisted by appellant, that the evidence does not warrant the judgment in favor of the appellees. Contemporaneous with the execution of the nonnegotiable notes in evidence was a written agreement of the parties having the effect to make the payment of the note out of a special fund on a specified contingency, and not otherwise. The agreement of the parties to make the payment of the note subservient to the limitations and restrictions of such agreement is valid. Rogers v. Broadnax,
"L. H. Sides filed the defenses as set out in the contract to said suit by J. V. Wiggins, and they were urged before the court, but the court held they were not proper defenses to said suit on the $5,000 note, and such defenses were abandoned when the court so held. Mr. Sides then made settlement of the note."
And in the "settlement of the note" referred to it appears that the appellant paid $603.34 less than the principal, interest, and attorney's fees due under the terms of the vendor's lien note at the date of settlement. But this underpayment may not, in the evidence, be said to be, within the meaning of the contract, "a recovery by L. H. Sides" of that sum as "damage or money or offset on the note owed J. V. Wiggins by him." For, as clearly shown by the witness Cox, the underpayment of the $603.34 by L. H. Sides to J. V. Wiggins was inadvertent, and a mistake due solely to erroneous calculation by the parties of the amount then due on the note being settled. The witness Cox testified that:
"We figured and intended to pay the full amount of the note. * * * If the entire amount thus figured and paid was not the entire amount that the note came to, with compound interest, then it was a mistake, as we intended to pay that much."
Thus it is evident that, if the mistake in calculation had not occurred, the underpayment of the amount due would not have been made; and L. H. Sides would not have the right, in view of the mutual mistake, to retain the amount of underpayment, for J. V. Wiggins has, under such proof, ground for relief to recover such unpaid amount. Hummel v. Flores, 39 S.W. 309; Emerson v. Navarro,
As the plaintiffs in the petition predicate a recovery upon the terms of the contract, and upon no other ground, a recovery, in the evidence, may not be allowed them. The judgment is reversed, and judgment is here entered for the appellant, with costs of the trial court and of this appeal.