Heilbroner v. Douglass

Citations

• 45 Tex. 402

Syllabus

<p>1. Evidence — Contract, alteration of — Fraud.—In suit .on a .breach of contract for a failure to deliver specific articles in consideration of other articles which had been delivered, the defendant set up a receipt for money paid, which recited that the specific articles bought by defendant were to be paid for in money, and which specified the price to be paid for each article. The plaintiff admitted the execution of the receipt, and that it was unaltered, except as to the particular description of the articles, which, it was averred, had been changed : Held, (1) That a charge to the jury, to the effect that an alteration of the contract contained in the receipt, if made by defendant, without plaintiff’s consent, so as to enlarge the defendant’s rights under it, was a fraud, and destroyed the validity of the instrument, was error; (2) That the charge would be correct, in reference to a .contract in writing upon which recovery was sought; but the receipt, being set up by the defendant as evidence that the specific articles were to be paid for in money, and not in other articles, and its correctness to that extent being admitted, it was proper evidence in resisting a claim for damages for the failure to pay in specific articles.</p> <p>2. Evidence — Confederate money. — The fact that a contract was to be discharged in Confederate money, like any other fact, may be proved by the circumstances attending the transaction.</p> <p>3. Attachment— Conversion — 'Reconvention.—A.defendant, when property has been seized under attachment, which is afterwards lost to him by its .delivery to some other person, without his fault or consent, and with the consent of the plaintiff, may plead in reconvention its conversion, and is entitled to a credit for its value on any debt which the plaintiff may establish.</p> <p>4. Damages — Measure for non-delivery of specific articles. —Where money or other consideration for an article contracto^ for has not been paid in advance of the time