Grant & Easter v. Smith

Citations

• 51 Tex. 562

Syllabus

<p>Charge of court—Estoppel.—A agreed with B that A would deliver specific articles to C, one-tliird of tho expense of delivery to be defrayed by A and two-thirds by B. A was to receive from B, in addition, one-third of the money B should receive from C under an original contract between B and C for the delivery of the same articles. Through mistake, A delivered a portion of the articles to another party, who had a contract also with C, and who received pay for them. B, in a settlement with C, receipted to him in full for all claims growing out of the contract. B subsequently discovering the mistake in regard to the delivery, sued C for the amount of articles, alleging that C had received the benefit of them from the party to whom A had delivered through mistake, and C recovered judgment. Afterwards, in a suit by A against B, among other things, for his portion of the full amount which B should have received had no mistake occurred: Held—</p> <p>1. That it was error to charge the jury that they could find any amount for A on account of the delivery of the articles, without also charging that B must have received pay for the same before he was liable, and that the jury could find only A’s share under his contract of what money B actually received.</p> <p>2. That it was error to charge that B’s receipt to 0, and the judgment- in favor o£C, estopped B from denying in this suit that he had possession and benefit of the articles so delivered ty mistake, and that the jury should include said articles in making their verdict. Neither fact was necessarily conclusive in determining whether B had in fact received pay. Whether lie actually did or did not, should have been left to tho jury on all the facts.</p> <p>3. Even a recovery by B in the former suit would not have determined A’s right to recover of him, in the absence of evidence showing that he liad collected the judgment.</p>