On Motion for Rehearing.
It is contended that the testimony of Weller and Dobie is to the effect that the offer of Wleller, testified to by them, to pay Burns $500, was conditioned upon the return by Burns of the $6,500 check.
[3] We have again examined the testimony of each of the parties, and we do not find any statement that such a condition was attached to Weller’s offer. Mr. Dobie testified:
“I heard Mr. Weller, in Saltillo, Mexico, demand or ask from Mr. Bums the return of the $6,500 cheek.' The reply of Mr. Burns, I think he said it was in Texas. Tes, Mr. Weller at the same time offered to pay Mr. Burns the $500 he had promised to pay him; I heard him offer to pay him $500.”
Weller testified:
“Yes, sir; after this thing fell down I demanded the return of this $6,500 cheek. I went to Mr. Burns and demanded this check in his house, and he told me the check was in the United States was the reason he couldn’t deliver the check. And then and there I offered to pay him the $500 that I had agreed to pay him.”
We find no other testimony on the particular point. The impression the testimony makes on our mind is that Weller, notwithstanding the absence of the cheek, then and there offered to pay Burns $500. Certainly, the theory that the offer was conditional must rest upon conjecture, for neither witness so testified. Neither undertook to say that Bums promised to return the check, or that he agreed to accept $500, or even stated that he would consider the matter. As stated before, this testimony could only have a remote bearing on the only issue, namely, whether the settlement involved the claim for $7,000, or only for $500. It could only show that at one time he was not averse to such a settlement. It is also argued that we overlooked the further important and vital thought from Burns’ standpoint that he had failed in successfully prosecuting and maintaining the order of detention against Weller.
It is also argued that, when the order of detention was vacated, this was a good reason for his subsequently accepting the amount claimed by Weller as being due Bums. These arguments, we believe, are not justified by the record. They appear to be predicated upon the theory that Burns discovered that Weller had in some way procured the vacation of the order of detention, and left Saltillo, and therefore he (Bums) decided to accept $500 in satisfaction of a $7,000 claim. There Is no evidence that Bums knew either of these facts. Siller does not testify that he informed him thereof. In fact, Siller’s testimony consists of one conclusion after the other. He fails to mention a single word said by him to Burns or Burns to him. He did not mention any difficulty in arranging the settlement, which indicates that Burns must have received what his order of detention called for, or have suddenly changed his mind without any reason for doing so. There is no record evidence to show for what sum Burns procured an order of detention. In deference to the judgment of the trial court, we must find that he believed the testimony favorable to Burns. Bums testified he stopped Weller for the $500. Siller, the attorney for Weller, does not testify to the contrary. He testified he accompanied Mr. Weller to see Mr. Barragan, the Municipal President of Saltillo, who had issued the order of detention for the purpose of getting the same rescinded; that Mr. Barragan revoked the order as he (Siller) had agreed to arrange a settlement of Mr. Burns’ claim on the following day. Weller left his check with Siller for $500, and Siller, even up to the time he delivered the check and obtained the receipt, had never heard of the $6,500 check. It appears that Siller procured the vacation of the order by his personal assurance that he would arrange a settlement. If Weller thought he had been detained for $7,000, he certainly left Siller in a difficult position. If Siller thought Weller had been detained for $7,000, he certainly took a big risk in assuring Barragan that he would arrange a settlement. It is true that Weller testified he was detained with regard to the $6,500 check, but the court was warranted in disregarding such statement and finding that the order of detention was for $500; that Burns contemplated, in making the settlement, that it was of his claim for $500; and that Siller who made the settlement with Burns had never heard of the $6,500 check, and did not contemplate settling any claim except the one upon which the order of detention had issued. The burden of proof was on Weller to establish his plea of compromise and settlement of the claim evidenced by the check sued on. The court did not err in holding that Weller failed to establish such plea.
The motion for rehearing is overruled.