Swann v. G. Muschke & Co. , 42 Tex. 342 ( 1874 )

Divine, J.

Appellees brought suit to recover from appellant, in the District Court of Harris county, two hundred and ninety-seven dollars and fourteen cents, the balance due on an account for lumber.

The defendant’s answer set up two receipts from plaintiff, one signed in June, 1873, for four hundred dollars. The other receipt being for two hundred and ninety-four dollars.

The plaintiffs amended their pleadings, and averred that a credit had been given defendant, on their account, for two hun died dollars, paid by defendant in April, 1873, and that the receipt signed by them for four hundred dollars, in June, included the amount of the two hundred dollars which, was already credited on the account rendered to defendant in April, 1873.

Plaintiffs, in their amendment, stated that the receipt signed by one of the plaintiffs in July, 1873, for two hundred and ninety-four dollars and thirty cents, was signed in ignorance of its contents; that defendant had written the receipt, stating the payment of this amount, which plaintiff had signed in ignorance of its contents, defendant having paid him not more than one hundred and ninety-four dollars.

The jury having found for the plaintiff the amount sued for, the defendant seeks a reversal of the judgment, and assigns as errors, the ruling of the court in admitting evidence to contradict the receipt for two hundred and ninety-four dollars and thirty cents, when the pleadings setting up the fraud of defendant or mistake of plaintiffs, was not sworn to; and the error of the judge in charging the jury in effect, “ that as to said receipt “ for two hundred and ninety-four dollars and thirty cents, it “ was open to explanation; and that if the proof showed that said “ receipt, by mistake or by fraud, was for a la'i'ger sum than was “ in fact paid, then the jury should allow only actual payments.”

We perceive neither error in the admission of the evidence, or the charge as quoted. The amendment of plaintiff was not a plea of non est factum., it was not in the nature of one ; it was an acknowledgment of having signed the receipt, and a statement of facts, which, if proven as evidence, could leave no other impression on the mind of a listener, than that by fraud or mistake, plaintiff, Muschke, had given defendant a receipt for one hundred dollars more than was paid him. That a receipt given for money or other property may be explained or contradicted by parol evidence, will not be seriously denied, when, as in this case, the pleadings authorize the introduction of proof; this being so, the charge of the court was properly framed to meet the real question at issue. ’

There was consequently no error in overruling the motion for a new trial, the evidence sustaining the verdict.

The judgment is affirmed.