Bracken v. Neill

• Decision Date: 01 January 1855
• Citation: 15 Tex. 109
• Parties: THOMAS BRACKEN AND ANOTHER v. ANDREW NEILL.
• Court: Texas Supreme Court

15 Tex. 109

THOMAS BRACKEN AND ANOTHER

v.ANDREW NEILL.

Supreme Court of Texas.

1855.

Where a commission to take a deposition was directed to the clerk of the district court of the county of Victoria, and was returned executed by the clerk of the district court of the county of Gonzales, and no objection was made until the deposition was offered in evidence, this court said the objection went to the form and manner of taking, and should have been made in writing and notified before the trial commenced.

In estimating the amount of damages in cases of fraud, it is proper to include the attorney's fee in the suit. [22 Tex. 253;24 Tex. 202;27 Tex. 134;28 Tex. 448.]

Where A sued B, who was an heir of C, for failing to pay over money delivered by A to B to be paid to C's executor, which money was part of the purchase money of land sold by C to A, it was held that the proceedings in a suit by the executor of C against A, from which it appeared that B had not paid over the money, were not competent evidence against B of that fact, he not being a party to the suit by the executor of C against A.

Where the plaintiff sued for damages for fraud, in the county where the fraud was committed, and recovered judgment, and it appeared to this court, on error, that there was no fraud, but merely failure to perform, the judgment of the court below, after a remittitur of the damages allowed for the fraud, was reformed for the proper amount, making the defendant in error pay all the costs.

It seems that the supreme court will, in proper cases, and on proper terms, conform the judgment to the case proved, although variant from the case alleged.

Error from Guadalupe. The action was for damages for fraud practised by Thomas Bracken on Andrew Neill, in this, that the latter, “being desirous of transmitting money to the executor of said deceased, entrusted to one Thomas Bracken, who represented himself as one of the heirs of said William Bracken, deceased, the sum of six hundred dollars to be by him taken and delivered to John McHenry, the then executor of said Wm. Bracken, deceased, who resided in Jackson county, which fact is evidenced by a receipt given by said Thomas Bracken, at Seguin, in Guadalupe county, on the 22d day of April, 1858, and is as follows: ‘Received of Andrew Neill the sum of six hundred dollars, as a payment to John McHenry, executor of Wm. Bracken, deceased, on land contracted by said Bracken to said Neill, April 16, 1850, and which is received as a part payment upon the indebtedness of said Neill on that account, and to be accounted for to him on the settlement of said business. This is received by me to be handed over to said McHenry.

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                ¦Seguin, April 22, 1853.¦THOMAS BRACKEN.¦
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Witness, A. H. Philips.'

Plaintiff alleges and so charges, that in violation of the trust reposed in him, in order to defraud your petitioner out of said money, said Thomas Bracken has not paid over said money or any part to said McHenry, etc., * * * by which he has sustained damages in the sum of two thousand dollars; that the fraud was committed in the county of Guadalupe,” etc.

Neither of the defendants resided in Guadalupe county, no?? was the administration of the estate of Wm. Bracken opened therein. Thomas Bracken was alleged to be a transient person, to be found in Jackson county.

The deposition of A. H. Philips was as follows: I know of a receipt given by Thomas Bracken to Andrew Neill, a copy of which is given in the second interrogatory, correctly, I think, except the date of the year, which, in the original, I presume, will be found to be 1853. The receipt was given on the occasion of a settlement between Andrew Neill and Thomas Bracken in relation to the cancellation of certain deeds of conveyance. Neill cancelled the deeds, and Bracken was to refund the purchase money. The purchase money, including some costs and expenses, which Bracken agreed to pay, amounted to twelve hundred dollars, as near as I can now recollect. Bracken counted out and handed to Neill six hundred dollars, and Neill then told him that he, Neill, was owing the estate of William Bracken, and that if Thomas Bracken would hand over the other six hundred dollars to McHenry, the then executor of the estate of William Bracken, or see that in his, Neill's, settlement with the estate, he, Neill, should be credited with that amount, it would suit him as well or better than to have the money. It was then agreed that Bracken should take the money to McHenry, or secure Neill a credit with him for six hundred dollars on Neill's settlement with McHenry. Neill then wrote the receipt alluded to, up to the words, “said business,” inclusive. Bracken declined signing this receipt, because it recited matters as to a contract of which he, Bracken, knew nothing. To stop the discussion, I took the paper and, after looking it over, added the following: “This money is received by me to be handed over to said McHenry.” I think the original receipt will show that this last clause is in my handwriting. If it is not, it was suggested by me as above, stating all the agreement of the parties and their object and intention. Neill expressed himself satisfied with the alteration; and, thus altered, I told Bracken he could safely sign it, as the recitals were mere surplusage. Bracken then signed the receipt and handed it to Neill. I do not now recollect whether the words, ““Seguin, April 22, 1853,” are in my handwriting or in Neill's. I do not know whether or not the money was paid to McHenry. All I know on that subject is, that Bracken, McHenry and myself talked over the matter, after my return from Seguin, and that the six hundred dollars was to be credited to Neill, and charged to the heirs of William Bracken, Thomas being one of them. James Bracken was not to be charged with any portion of the six hundred dollars, because he had not sold to Neill and was not interested in the cancellation of...