Adm'x v. Bailey

• Decision Date: 01 January 1856
• Citation: 16 Tex. 229
• Parties: WILLIAM C. HICKS' ADM'X v. NATHANIEL BAILEY.
• Court: Texas Supreme Court

16 Tex. 229

WILLIAM C. HICKS' ADM'X

v.NATHANIEL BAILEY.

Supreme Court of Texas.

1856.

The law of the case, in its application to the evidence, was fully embraced in the general charge, which was as favorable to the defendant as the evidence warranted, and this was a sufficient reason for refusing the instructions asked by defendant.

The instructions asked were rightly refused, for the further reason that they asked the court to assume, and give in charge to the jury, the law upon a different state of case from that which the evidence conduced to establish.

The court was clearly right in holding that where goods are in fact sold and delivered to any person, the declaration of the seller that he did not or would not credit that person on his own responsibility, is not sufficient to discharge from liability the person to whom the goods were so sold and delivered.

The court rightly charged also, that the plaintiff was entitled to recover interest upon the judgment, which he was compelled to pay for the defendant as his surety. [1 Tex. 105;11 Tex. 82;21 Tex. 635; 25 Tex. Sup. 180.]

Where the assignment of errors is thus general, giving the defendant in error no notice of the particular error intended to be relied on for a reversal of the judgment, unless the justice of the case seem manifestly to require it, this court will not reverse the judgment for such errors.

Upon a general assignment merely, that “if the plaintiff is entitled to recover anything, the verdict and judgment are for a much greater sum than the pleading and evidence authorize,” where the matters litigated and decided embrace such a number and variety of particulars, amounting in the aggregate to so considerable a sum, we cannot be required to inspect all the various instruments of evidence, and an account consisting of small items, amounting in all to several hundred dollars, to see if the verdict may not include some trifling items or amount to which there was a legal defense, and which was therefore improperly allowed; especially when the attention of the court below does not appear to have been called to the point, and there is no cause to apprehend that any injustice was, in fact, done by the verdict to the party complaining. To authorize a reversal of the judgment for such an error, it should at least have been pointed out in the assignment of errors. [[[[

Appeal from Polk. Tried before the Hon. Peter W. Gray.

Suit by appellee against William C. Hicks, on an account for goods sold and delivered, for hire of negro, for money paid as surety, and on several small promissory notes. The defendant died before answer, and his administratrix was made a party. Answer of general denial and general plea of statute of limitations to the whole account. The general correctness of the account was proved, and the more important items were specifically proved. The defendant proved that the plaintiff had said that he had stopped crediting the intestate in the first part of 1849, and there was an effort to prove that the goods had been furnished on the credit of Thomas Hicks; there was no evidence of it. The court charged the jury that a declaration by a party, that he did not or would not credit another on his own responsibility, when in fact he sold to that party on the faith of a promise to pay by a third party, was not sufficient to discharge the party to whom the goods were sold and delivered; and that if they found that the plaintiff had been compelled to pay money as surety for the defendant's intestate, he was entitled to recover it back, with interest from the time of payment. The other parts of the charge are not necessary to a report of the case. The defendant asked the court to charge the jury, that if they believed from the evidence that the articles mentioned in plaintiff's petition were not sold and delivered to William C. Hicks on his credit, but were delivered to him, but sold on the credit of another person, they should find for defendant. Which charge was refused. Verdict and judgment for plaintiff for $1,531.28, the amount claimed. Motion for new trial, on the ground that the finding of the jury was contrary to the evidence; the amount of the verdict was excessive; verdict contrary to law; court erred in charge to jury, and in refusing charge asked by defendant. Motion overruled. Assignment of errors, that the court below erred in overruling the motion for a new trial; in the charge to the jury; in this, that if the plaintiff is entitled to recover anything, the verdict and judgment are for a much greater sum than the pleadings or evidence authorize.

B. C. Franklin and H. N. & M. M. Potter, for appellant.

Yoakum & Branch, for appellee.

WHEELER, J.

There is no error in the instructions given, or in refusing those asked by the defendant. The law of the case, in its application to the evidence, was fully embraced in the general charge, which was as favorable to the defendant as the...