George v. Taylor , 55 Tex. 97 ( 1881 )

Quinan, J. Com. App.

The errors assigned in this case are:

1st. The court erred in its order of December, 1811, reinstating the above case, because there was no merit in the application to reinstate, and because the motion was not filed within the two days required by the statute.

2d. The judgment of the court is erroneous and should have been for the defendant.

3d. The court erred in overruling defendant’s motion for a new trial.

4th. The judgment of the court is contrary to the law and the evidence, and especially as to the defendant Zorn.

The grounds for granting a new trial are, that the judgment is not warranted by the law and evidence, and that “the evidence showed no collusion or fraud on Zorn’s part, or circumstances from which it could be inferred, but that he simply acted as agent in collecting said money for George,” and had accounted with him.

1. The action of the court in setting aside the non-suit and reinstating the case was not error. The matter was in the discretion of the court, and it does not appear that it was improperly exercised. Goss v. McLaren, 17 Tex., 107.

2. The assignments of error are so general that the court might well refuse to consider them.

The only question, however, raised is whether the testimony was sufficient to warrant the verdict of the jury.

We have examined the statement of facts carefully, and we cannot say that their finding is without proof to sustain it.

It appear the Alexander draft came into possession of Zorn after it became due and was protested. He took it, therefore, subject to all the equities between the parties to it. When Mrs. Taylor paid him the $400, he knew, and George knew, that she was not liable upon the draft. By arrangement between George and Taylor, whatever loss was sustained upon the sale of mules to Alexander, for which this draft was given, or from non-payment of the draft, was to fall upon George. When the $400 was paid a settlement had been effected with Alexander by George, by which the mules were returned to George, and the mules were sold and the proceeds placed to his credit. Mrs. Taylor was ignorant of these facts. She believed her husband’s estate was liable upon the draft., as he had indorsed it. But George and Zorn knew better. She paid the money under the belief that the mules remained in Alexander’s hands, and that she could get them. She so understood from George and Zorn. It was with this “express understanding,” and with the belief that out of the proceeds of the sale of the mules she could be reimbursed, that she took up the draft. Yet under these circumstances, and with the knowledge that Mrs. Taylor was laboring under a wrong impression of the state of the facts, induced by him, Zorn received the money from her. It is shown, too, that Zorn had in his hands, belonging to George, abundant means when Mrs. Taylor brought this suit to recover back the money paid, out of which, as Zorn expresses it, “to save himself.” The transaction seems strongly marked with unfairness and imposition. , It would not be just to permit Zorn to hold the money so obtained. Sibley v. Hubert, 15 Gray, 509; Ross v. Armstrong, 25 Tex. Sup., 368.

Where a party pays money in ignorance of circumstances with which the receiver is acquainted and does not disclose, and which, if disclosed, would have avoided the payment, the receiver acts fraudulently and the money may be recovered back. Martin v. Morgan, 3 Moore, 365; Hall v. Pennell, 2 Md. Ch., 137; Neavitt v. Bank of Ft. Gibson, 1 Fr. Ch., 438; Guild v. Baldridge, 2 Swan (Tenn), 295.

We are of opinion that the judgment ought to be affirmed.

Affirmed.

[Opinion delivered April 25, 1881.]