Bluntzer v. Dewees

• Decision Date: 16 January 1891
• Parties: BLUNTZER <I>et al.</I> v. DEWEES <I>et al.</I>
• Court: Texas Supreme Court

15 S.W. 29

BLUNTZER et al. v. DEWEES et al.

Supreme Court of Texas.

January 16, 1891.

Appeal from district court, Nueces county.

McCampbells & Welch, for appellants. Tarleton & Keller and A. S. Chevalier, for appellees.

HENRY, J.

This suit was brought by the appellees to recover damages for a breach of the following contract charged to have been executed by the defendants: "San Antonio, Texas. 2-22-1884. I agree to sell Dewees and Hinkle 2,000 head of yearling heifers, and 2,100 [alteration] head of 2 year old heifers, at my ranch in San Patricio county, at $12 for ones and $16 for 2s, if they pay me 1/3 of the money by the 15th day of March, and balance on delivery of cattle, and I agree to deliver either or both herds at Cotulla or Pearsall, at 25 cents per head, when they are passed on at my ranch. Delivery to be from the 5th to the 20th of April. [Signed] N. BLUNTZER. We hereby guaranty the above contract on the part of N. Bluntzer. [Signed] D. & A. OPPENHEIMER." Judgment was rendered for plaintiffs. The defendant Bluntzer pleaded under oath a material and fraudulent alteration of said obligation, after it was signed and delivered by him, and by his own testimony substantially supported said plea. The plaintiffs introduced evidence going to show that the obligation was not changed in any respect after it was signed. Upon this issue, at the request of plaintiffs, the court charged the jury as follows: "You are further instructed that fraud cannot be presumed, but is a fact to be proved, as any other fact, and that he who relies on fraud to avoid the effect of a contract, on its face legal and valid, must establish the fraud by a preponderance of evidence, either direct or by circumstances from which the inference of fraud naturally arises, and with such certainty as will satisfy your minds that such fraud actually exists." Previous decisions of this court have held such a charge as this improper. Wylie v. Posey, 71 Tex. 39, 9 S. W. Rep. 87; Schmick v. Noel, 72 Tex. 4, 8 S. W. Rep. 83; Baines v. Ullman, 71 Tex. 537, 9 S. W. Rep. 543; McBride v. Banguss, 65 Tex. 175.

It was charged and proved that the guaranty by D. & A. Oppenheimer was made subsequent to the execution of the obligation of Bluntzer, and without his request or knowledge, in consideration of a deposit of the first payment for the cattle being made with them for the use of Bluntzer. The evidence, we think, sufficiently shows that Bluntzer, before the date arrived for making the...