Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 344
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344 SWANN V. MUSCHKE. [Term of
Opinion of the Court.
1 Greenl. Ev., §§ 305, 212; 8 Wallace, 328; Stapleton v.
King, 33 Iowa, 28; Ryan v. Ward, 48 N. Y., 204; Byrne v.
Schwing, 6 3. Monroe, 190; Ryan v. Rand, 6 Foster, 13;
Brooks v. White, 2 Met., 283; Hunmphries v. McCraed, 5
Pike, 61; Southwick v. Hayden, 7 Cowan, 334; Edgerly v.
Emerson, 3 Foster, 555; Saunders v. Hendrix, 6 Ala., 224.
DIVINE, J. Appellees brought suit to recover from appellant,
in the District Court of Harris county, two hundred and
ninety-seven dollars and fourteen cents, the balance due on an
account for lumber.
The defendant's answer set up two receipts from plaintiff,
one signed in June, 1873, for four hundred dollars. The other
receipt being for two hundred and ninety-four dollars.
The plaintiffs amended their pleadings, and averred that a
credit had been given defendant, on their account, for two hun
dred dollars, paid by defendant in April, 1873, and that the receipt
signed by them for four hundred dollars, in June, included
the amount of the two hundred dollars which was already
credited on the account rendered to defendant in April, 1873.
Plaintiffs, in their amendment, stated that the receipt signed
by one of the plaintiffs in July, 1873, for two hundred and ninety-four
dollars and thirty cents, was signed in ignorance of its
contents; that defendant had written the receipt, stating the
payment of this amount, which plaintiff had signed in ignorance
of its contents, defendant having paid him not more than
one hundred and ninety-four dollars.
The jury having found for the plaintiff the amount sued for,
the defendant seeks a reversal of the judgment, and assigns as
errors, the ruling of the court in admitting evidence to contradict
the receipt for two hundred and ninety-four dollars and
thirty cents, when the pleadings setting up the fraud of defendant
or mistake of plaintiffs, was not sworn to; and the error of
the judge in charging the jury in effect, " that as to said receipt
"for two hundred and ninety-four dollars and thirty cents, it
was open to explanation; and that if the proof showed that said
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/352/: accessed September 19, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .