Another v. Barnett

• Citation: 7 Tex. 584
• Parties: WELLS AND ANOTHER v. BARNETT.
• Decision Date: 01 January 1852
• Court: Supreme Court of Texas

7 Tex. 584

WELLS AND ANOTHER

v.BARNETT.

Supreme Court of Texas.

1852.

Where the plaintiff sued for the specific performance of a bond to convey, which bond the defendants had fraudulently induced him to cancel, & c., the jury found “that the plaintiff recover on his bond the land and appurtenances:” Held, That the verdict was sufficient, being, in effect, a general verdict for the plaintiff. (Note 86.)

The form of a verdict is not material. If it be intelligible and sensible, and find substantially the material issues, it is sufficient. (Note 87.)

The province of the jury is, in general, the same in cases of equitable as in those of legal cognizance; and the sufficiency of their verdict will be determined by the application of the same rules.

That the evidence is not satisfactory to this court is not sufficient; it is not enough that it is not clear that the verdict is right; it must clearly appear that it is wrong, to authorize the reversal of the judgment on that ground.

It is not error to refuse to give instructions which assume certain facts which are in issue; nor can a party complain where, having asked an improper instruction, the court modifies it with a proviso not in itself erroneous.

The court is under no obligation to modify or change instructions asked.

Although the threat of a lawsuit is not sufficient to avoid a contract, yet it may be taken into consideration by the jury in connection with evidence of fraud.

Appeal from Walker. This suit was brought by the appellee against the appellants to enforce the specific performance of a contract for the sale of a mill and lands.

The plaintiff, Barnett, made the purchase of Jackson Wells, and took his bond to make title, on payment of the purchase-money, for which he gave his notes. The plaintiff alleged that John Wells, the father of Jackson, acquiesced in the sale, and acted as the agent of the latter in receiving payment of the purchase-money; that the title was in John Wells; that he had paid the purchase-money, and that the defendants refused to make title. He further alleged that the defendants conspired together to defraud him, and by fraudulent contrivances, representing that he could not get a title, threatening him with a lawsuit, &c., induced him to agree to a rescission of the contract of purchase; that, by the terms of the agreement, the defendant, Jackson Wells, was to deliver to him a note for one hundred dollars, which he would guarantee to be good, and that thereupon he was to deliver to the said defendant his title bond; that the said defendant failed to comply with his part of said agreement, but sent to the plaintiff a note on one Elkins, which was not good, which the said defendant would not guarantee, and which the plaintiff refused and tendered back to the said defendant.

The defendants demurred, and answered to the merits; among other matters, admitting the contract of sale, but averring that it had been canceled by the consent of the parties; that the plaintiff agreed to take the note on Elkins without guaranty, and that it was delivered to and received by him. They denied the payment of the entire purchase-money and the several charges of fraud. The demurrer was overruled.

On the trial the defendants asked of the court instructions to the jury, among which were the following:

“1st. If the jury believe from the testimony that the trade was canceled, and the notes for remaining part of the purchase-money were surrendered by the defendant, Jackson Wells, to the plaintiff at the time, they must find for the defendants.

2d. That no threats of a lawsuit can avoid a contract to cancel the said sale of land. 5th. That they (the jury) cannot find for the plaintiff if they believe from the testimony that, at the time the land trade was canceled, the plaintiff got into his possession any of the notes for the purchase-money in consideration thereof, and still retains said notes.”

The first of these instructions the court gave with this qualification: “Unless the jury believe from the evidence that the defendants acted fraudulently in procuring the cancellation.” The second was also given, but with this addition, “But the jury may take it into consideration, connected with other evidence on the issue of fraud.” The last instruction the court refused.

The jury returned the following verdict: “We, the jury, agree that plaintiff recover on his bond the land and appurtenances thereto.”

There was a motion for a new trial overruled, and judgment for the plaintiff.

Appellants, for themselves.

Yoakum & McCreary, for appellee.

WHEELER, J.

The grounds relied on in argument for the reversal of the judgment bring in question, 1st, the sufficiency of the verdict; 2d, the sufficiency of the evidence; and, 3d, the instructions to the jury.

The verdict is, in effect, a general verdict for the plaintiff, on the issues respecting his right to a specific performance of the contract of sale; and it necessarily includes the decision of every material fact well pleaded touching his right to...