Leigh v. Linthecum , 30 Tex. 100 ( 1867 )

Donley, J.

This action may be held as being founded on the letter of the 15th of March, 1854, the note of 1841 constituting the consideration for the promise contained in the letter, (Coles v. Kelsey, 2 Tex., 541-552,) and the plaintiff must recover, if at all, upon the promise contained in that letter. The letter contains an offer to adjust the matter when the defendant should see the attorney of the plaintiff’, to whom the letter is addressed, and a promise to pay whatever is due on the note; the defendant claiming that he held a set-off against the note for cotton and for hauling. In the view we take of this ease, it is not necessary to determine whether the plaintiff should have offered to settle and adjust the business between defendant and himself, for the purpose of ascertaining what was due from plaintiff on the note, after allowing to him credit for the six bales of cotton, and such sum as was due by the plaintiff to defendant for hauling. The letter might be held as an offer or proposition, on the part of the defendant to the plaintiff, to settle the matters, and an agreement to pay whatever should be found to be due. If it be held a proposition to pay what should be due plaintiff, if he would make a settlement with and adjust the accounts between them, and a promise to pay what should be ascertained on such settlement to be due from defendant to the plaintiff on such “ settlement,” the settlement, or offer to settle and adjust the business between the parties would be necessary to give the plaintiff a cause of action on such agreement. (Bell v. Morrison, 1 Pet., 368; Bush v. Barnard, 8 Johns., 408; Kampshall v. Goodman, 6 McLean, 189; Shitler v. Bremer, 23 Pa., 415.)

If the letter may be held as an agreement to pay such amount as may be due on the note, after allowing the credits to which the defendant is entitled, and which are alluded to in the letter of the defendant, it devolves on the plaintiff to show the amount of those credits. By this means he shows the amount which the defendant agreed to pay. The promise is not to pay the money specified in the note, but a part only of that amount. The plaintiff must establish his demand to entitle him to judgment. The note and letter are links in the chain of evidence, but alone are insufficient to authorize a judgment against the defendant for any amount. If the letter may be held as an agreement to pay a part of the note of 1841, yet it is wholly insufficient to show what part of the note was left unpaid, after allowing the credits to which the defendant was entitled. A party who avers that he holds a legal demand against another must sustain the averment by testimony legally sufficient to warrant the court in rendering judgment- in his favor, or fail in his action. The evidence does not show that the plaintiff is entitled to a verdict against the defendant for any amount whatever. There is no error in the judgment, and it is

Affirmed.