Flack v. Neill

• Decision Date: 01 January 1858
• Citation: 22 Tex. 253
• Parties: C. P. FLACK, ADM'R, v. GEORGE J. NEILL.
• Court: Texas Supreme Court

22 Tex. 253

C. P. FLACK, ADM'R,

v.GEORGE J. NEILL.

Supreme Court of Texas.

1858.

The right of a party to recover reasonable fees, as special damages, in cases of fraud, is confined to those in which he is obliged to take the initiative, in order to redress a wrong, perpetrated through fraud or malice. 15 Tex. 109;24 Tex. 202;27 Tex. 134;28 Tex. 448.

If the plaintiff has an apparently good cause of action, arising ex contractu, and the defendant sets up fraud as a defense, he cannot recover such special damages.

Much less can a defendant recover such special damages, in such a suit, to which an administrator has made himself a party plaintiff; for it is his duty to prosecute suits pending at the time of his intestate's death.

In the absence of fraud, or any circumstances of imposition, a party may bind himself to pay the debt of another, although the debt be barred by the statute of limitations, at the time of the new contract.

Where the defense set up, in a suit on a promissory note, is, that it was given in payment of the debt of a third party, which was barred by the statute of limitations at the date of its execution: if the question of limitation be material, the burden of proof is upon the defendant; and a charge, so framed that the jury cannot find for the plaintiff, without first arriving at the conclusion that the debt for which the note was given was not barred by the statute, at the date of the note, is erroneous.

Fraud being the main question, the judge ought to instruct the jury what circumstances would constitute such a fraud, as the defendant could properly claim to be relieved against; for it is not every fraud against which the law will relieve.

APPEAL from Guadalupe. Tried below before the Hon. A. W. Terrell.

Suit was commenced by R. P. Flack, on a promissory note for $416.50, executed to him by the appellee, dated the 12th of February, 1853, and payable on the 1st of January, 1854. The plaintiff died, and the suit was subsequently prosecuted by the appellant, as his administrator. The appellee set up as a defense, that in the year 1845, he became the administrator de bonis non, upon the estate of Charles S. Smith, who was killed in the Alamo, in 1836. That there being no assets of the said estate, which he could get into possession, he did nothing in the administration, but suffered his appointment, as such administrator, to expire by operation of law. That at the date of the execution of the note, Flack represented to him that he owned an account against the estate of Smith, which had been regularly probated and accepted, as a legal claim against the estate, by a former administrator; that the account had been lost; but that he had a receipt given by an attorney for its collection; and that the appellee had made himself personally liable for the debt. The appellee alleged in his answer, that these and other statements of Flack, of like character, were false, and made with the fraudulent intent of deceiving and defrauding him; that, being an ignorant man, and without education, he believed these statements, and gave the note sued upon, without consideration, in payment of the said pretended account, the existence of which was denied; that if any such ever existed, it had been barred by the statute of limitations, long before the execution of the note sued upon; also that the appellee had been forced to employ attorneys, to defend himself against the said fraudulent demand, etc.

The following are the instructions given by the court below to the jury, to which exception was taken, to wit: “Although as above stated, a party may bind himself to pay the debt of another, yet, if such debt so due by such third party, were already barred by limitation, before the execution of the note, the maker would not be liable.

If a party is guilty of misrepresentation and falsehood, in regard to a material fact,...