Robertson v. Smith, 11 Tex. 211

Wheeler, J. 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 the confidence that he was, or would be released from the stipulation to assign the judgment, it would seem to have been but fair and just that they should either assent to or disaffirm his acts. And such seems to have been the intention and understanding of the defendants Webb and Robertson, at the time.

They accordingly spoke of having nothing more to do with the business, evincing a disposition to disavow the acts of their agent, and to disaffirm the contract altogether. Upon the solicitation of Chalmers, however, who used the argument that the property was worth what he had contracted to give for it, independently of the judgment, they finally “ consented to let matters remain as they were,” that is, as Chalmers had placed them, in concluding the business with the plaintiff; and proceeded to do acts confirmatory of that contract, taking possession and disposing of the property.

The appellant and his co-defendant Webb then manifested the intention to acquiesce in the arrangement which their agent had made; and though the defendant Webb states in his testimony, that he did not give his consent to release the plaintiff from his obligation to assign the judgment, yet I should be inclined to regard the acts of himself and his co-defendant Robertson as amounting virtually to such release; from which it would result, that the plaintiff was thereafter under no obligation to these parties, to make the assignment in question ; and that his having failed to do so could not avail them as a ground of defence or of relief in this suit.

This conclusion, however, is not satisfactory to a majority of the Court. 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. The defendant does not appear to have done any act in relation to the judgment, or to have exercised any control over it. But the evidence is, that the defendant Webb, acting, as we must suppose, for himself and his co-defendants, took control of the collection of the judgment. The witness Ayres was the agent of the defendant and acted under his instructions.

And though he used the name of the plaintiff, in bidding in the land levied on, and causing the execution to be returned satisfied, he did so without authority from the plaintiff. The plaintiff' had refused to give any instructions respecting the execution in the hands of Ayres, or to exercise any control over it. Ayres was not his agent and had no authority from him to act in the premises. And there can be no pretence that his acts can bind the plaintiff, or that he can be held responsible to the defendants, for the unauthorized use of his name by their agent.

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.

There certainly is no evidence to warrant the conclusion that the plaintiff has converted it to his use; or that his omission to assign it, has deprived the defendants of any benefit or advantage they might have derived from it. - The Court are of opinion, therefore, that the plaintiff is not chargable with the judgment, as claimed by the appellant; that if any thing has been done to embarrass its future collection, it was by no fault of the plaintiff, and that he can not be held responsible on that account; and, finally, that full and complete justice can be done between the parties, by so re-forming the judgment of the Court below, as to require the plaintiff to make the proper assignment of the judgment in question ; and that the judgment under revision be, in other respects affirmed.

Judgment re-formed.