On Second Motion for Rehearing. Defendant in error, in his brief and in his motion for a rehearing, ignores the principle of law that governs the disposition of this cause.
If there be a bona fide claim on the part of A that B owes him, and B executes a note to A because of such contention, B cannot raise, as a defense, no consideration for the execution of the note. The consideration is the settlement between the parties, based on the claim made.
The evidence in this case establishes, without dispute, that plaintiff in error asserted what he believed to be a bona fide claim that defendant in error was indebted to him; that one Rogers, to whom plaintiff in error claimed to have paid debts due Rogers by defendant in error, was present when the contention was discussed between the parties, and that Rogers figured the amounts thus claimed to be due plaintiff in error by defendant in error, which grew out of the transaction with him, as well as the amount that was claimed to be owing to plaintiff in error by reason of a sale of an automobile to defendant in error. Two notes were then drawn up and defendant in error signed and delivered them to plaintiff in error. These notes were renewed from time to time, and this suit is predicated upon the last renewal notes.
The evidence shows that Rogers was a friend to both defendant in error and plaintiff in error. There is nothing to show that he was not trusted by both parties in the matter of figuring the amounts of the notes to cover the indebtednesses owed by defendant in error to plaintiff in error. No effort was made by defendant in error to plead that Rogers was guilty of any fraud in the transaction, or that he colluded with plaintiff in error to defraud or overreach defendant in error, and no evidence was introduced tending to establish any such fact, and no issue requested to be submitted to the jury for a finding thereon.
Defendant in error could, if the facts had warranted that defense, have pleaded payment; but such would have been confined to payment since the execution of the first settlement notes.
The pleadings do not raise the issue of payment, but if they may be construed to do so, the evidence is insufficient to establish the issue, and if it can be said that the evidence is sufficient to establish the issue, it has been waived and abandoned by defendant in error, because he did not request the jury to find on any such issue, and the verdict is silent thereon.
Defendant in error did not plead "accident" in the execution of the notes, but if it can be said that his pleading is sufficient to raise such issue, the evidence is insufficient to raise the issue, and if it can be said that the evidence is sufficient to raise such issue, defendant in error has waived and abandoned the issue, because he did not request the jury to find on any such issue, and the verdict is silent thereon.
Defendant in error's pleading is not sufficient to raise the issue of "fraud" or "misrepresentation" in the execution of the notes, but if it can be said that his pleading is sufficient to raise either or both of such issues, the evidence is insufficient to raise either of such issues, and if it can be said that the evidence is sufficient to raise either or both of such issues, defendant in error has waived and abandoned the issues, because he did not request the jury to find on either, and the verdict is silent thereon.
Defendant in error did not plead "mutual mistake" in the execution of the notes, but if it can be said that the pleading is sufficient to raise such issue, the evidence is insufficient to raise the issue, and if it can be said that the evidence is sufficient to raise the issue, defendant in error has waived and abandoned such issue, because he did not request the jury to find on such issue, and the verdict is silent thereon.
Defendant in error's pleading is insufficient to raise the issue of a set-off or counterclaim against plaintiff in error, but if it can be said that the pleading is sufficient to raise such issue, the evidence is insufficient to raise the issue, and if it can be said that the evidence is sufficient to raise the issue, *Page 796 defendant in error has waived and abandoned the issue, because he did not request the jury to find on such issue, and the verdict is silent thereon.
In the case of Camoron v. Thurmond, 56 Tex. 22, we find the following statement: "A deliberate settlement of a controverted right will not be set aside except for those cases which, like fraud, mistake, or undue influence, invalidate all contracts." Citing the old landmarks, French v. Shoemaker, 14 Wall. 314, 20 L. Ed. 852, and Bennet v. Paine, 5 Watts (Pa.) 259, 261.
In the case of O'Fiel v. Janes (Tex. Civ. App.) 269 S.W. 1074, 1082, affirmed (Tex.Com.App.) 280 S.W. 163, we find the following statement of the law: "In passing upon the effect of compromise settlements, no investigation into the character or value of respective claims will be made; it being sufficient that the parties thought there was a question between them. * * * When a right is doubtful, or is controverted, or where the object is to avoid or settle litigation, a compromise duly executed will not be set aside by the courts if the parties acted in good faith, and there is no fraud or misrepresentation." This well-considered opinion points out the rule that the settlement must be enforced even though it afterward appear that the claim was not in fact good, when made.
Defendant in error's evidence establishes the fact that, at the time of the execution of the first notes, there was a controversy between the parties over what defendant in error owed plaintiff in error, and that the notes were executed to settle the controversy.
If no such controversy existed, at that time, between the parties, then defendant in error must, of necessity, have fully understood and recognized the indebtedness due by him to plaintiff in error, unless he executed the notes by reason of fraud, misrepresentation, mutual mistake, accident, duress, undue influence, or overreaching.
Defendant in error's pleading is insufficient to raise the issues of "undue influence," or "duress," or "overreaching," in the execution of the notes, but if it can be said that such pleading is sufficient to raise any one or all of such issues, nevertheless the evidence is insufficient to raise any one of such issues, and if it can be said that the evidence is sufficient to raise any one, or even all, of such issues, then defendant in error has waived and abandoned them, because he did not request the jury to find on any of such issues, and the verdict is silent thereon.
In the case of Gilliam v. Alford, 69 Tex. 267, at page 271, 6 S.W. 757, 759, the learned Judge Stayton quotes from Pomeroy's Equity in laying down the rule that "voluntary settlements are so favored that if a doubt or dispute exists between parties with respect to their rights, and all have the same knowledge, or means of obtaining knowledge, concerning the circumstances involving those rights, and there is no fraud, misrepresentation, concealment, or other misleading incident, a compromise into which they have voluntarily entered must stand and be enforced, although the final issue may be different from that which was anticipated, and although the disposition made by the parties in their agreement may not be that which the court would have decreed had the controversy been brought before it for decision."
In addition to the authorities cited in the original opinion and hereinabove, we cite Sutton v. Schoellkopf (Tex. Civ. App.) 62 S.W.2d 318 (writ refused); Scott v. Lott (Tex. Civ. App.) 247 S.W. 685 (writ dismissed), and Walker-Smith Co. v. Pouns (Tex. Civ. App.) 256 S.W. 613.
Defendant in error urges, in his motion for a rehearing, that the exceptions leveled at his pleading should not have been sustained, and apparently urges that, if the exceptions should have been sustained, then this court is without authority to do other than reverse the judgment of the trial court and remand the cause for a new trial.
But defendant in error is unmindful of the fact that he was allowed the full benefit of the allegations and assertions, which we believe are subject to objection, and, bolstered up by such allegations and assertions, nevertheless he has waived and abandoned the issues he attempted to thereby raise. His waiver and abandonment is open and apparent, from the record, as to all issues but that of "no consideration" for the execution of the first notes and the subsequent renewals. But instead of raising the issue of no consideration, the undisputed evidence shows there was a definite and lawful consideration for the notes, as is pointed out by us.
The bar frequently complains that the appellate courts give little thought to assignments of error based upon exceptions to inflammatory, prejudicial, and otherwise objectionable allegations. We do not intend to *Page 797 intimate that such complaint is well-founded, but we do intend to say that when such exceptions are urged before us and a study of the record discloses that the pleading thus attacked is subject to a proper attack and just criticism, this court will not pass by the assignments of error rightfully presented.
This court expects of every litigant that he observe the plain rules governing proper pleadings, and, where he has not done so, we will, on proper assignment of error, point out the violation of such wholesome rules.
In the case of Parker v. Allen, 33 Tex. Civ. App. 206, 76 S.W. 74, 78 (writ refused), the court had before it a pleading that was general and not specific as to want of consideration of, and fraud in the execution of, the instruments involved in the suit, which pleading set up the purported consideration and sought to deny it in general terms. The opinion states: "The existence of the several instruments by which plaintiff conveyed and released to the defendants all of his interest in the subject-matter of this suit being admitted in his petition, it follows that, unless the facts alleged in said petition are sufficient to avoid each and all of said instruments upon the ground of fraud, duress, or want of consideration, the petition fails to state a cause of action, and the general demurrer was properly sustained. A general allegation of fraud or duress is not sufficient to present such issue, but the facts relied on to show same must be pleaded. There is no allegation of fact in this petition from which fraud could be presumed. No misstatements of fact by any of the defendants is alleged by which plaintiff was misled or deceived, and no concealment of the truth or deceitful act of any kind is charged against any of the defendants. We think it clear that the petition is fatally defective in its attempt to avoid the instruments above mentioned on the ground of fraud. * * * The petition alleges in general terms that said contracts and agreements were without consideration, but the facts stated in the petition show a valuable consideration for each of said contracts."
We do not believe that the pleading before us stated a defense to either note sued upon, but, after being given the full benefit of every allegation in his pleading, the evidence, introduced by defendant in error, does not raise any defensive issue to either note.
A full and complete plea of want of consideration does not shift the burden of proof of consideration to the shoulders of plaintiff in error. The notes import a consideration, and a proper plea of want of consideration merely puts that issue before the court, or jury, and the burden still rests upon the defendant in error to establish want of consideration for the execution of the notes. In this cause, the defendant in error wholly failed to meet the burden.
The motion is overruled. *Page 1051