King v. Gray

• Decision Date: 01 January 1856
• Citation: 17 Tex. 62
• Parties: WILLIAM KING v. WM. B. GRAY.
• Court: Texas Supreme Court

17 Tex. 62

WILLIAM KING

v.WM. B. GRAY.

Supreme Court of Texas.

1856.

Where an interrogatory in a deposition was objected to at the trial on the ground of irrelevancy and generality, and the objection was sustained, this court refused to revise the ruling, because the bill of exceptions did not state the answer of the witness.

Where interrogatories in a deposition were objected to at the trial, on the ground that they were based on a preceding interrogatory which had been excluded, and the objection was sustained, the court refused to revise the ruling because the bill of exceptions did not state the answers to the interrogatories.

Where a locator has contracted to make a location on the waters of a certain creek, and pay the expenses of perfecting the title, in consideration of the owner's bond to convey him a part of the land, and makes the location and has the land surveyed, but is prevented from perfecting the title by the fault of the owner in a suit on the bond, by the locator, for damages, it would seem that the defendant might prove, in mitigation of the damages, that the plaintiff located another certificate upon the same land, so that it was not lost to him.

Bills of exception to the exclusion of the testimony should state facts enough in addition to the evidence excluded, if necessary, to show the relevancy and materiality of the evidence. [7 Tex. 593;18 Tex. 55;21 Tex. 407;23 Tex. 674;29 Tex. 429.]

When a motion for a new trial is not on the ground that the evidence was insufficient to warrant the verdict, but that it was insufficient in certain particulars which are not important; and the assignment of error is simply that the court erred in overruling the motion for a new trial, this court will not inquire whether the evidence is insufficient to sustain the verdict, in particulars not stated in the motion for a new trial.

Where the court below has refused to grant a new trial on the ground that a witness, when on the stand, could not recollect a material fact, which, by due attention, might have been recollected; or inadvertently omitted to state a material fact known to him, the judgment, if not otherwise impeached, will not be reversed. But where it appears that a witness has purposely withheld from the party information of a material fact, the case is different; and such being the case here, the judgment was reversed. [4 Tex. 319;30 Tex. 50.]

Appeal from Jasper. Tried below before the Hon. Archibald W. O. Hicks.

Suit commenced October 4, 1853, by appellee against appellant on a bond in the penal sum of twelve hundred dollars, reciting that the defendant had delivered to the plaintiff Ennis Hardin's headright certificate for two-thirds of a league and labor of land, which plaintiff was to locate on the waters of Beach creek, in the county of Tyler, and defray all the expenses in perfecting the title; and conditioned that the defendant should make to the plaintiff a good and bona fide title to one-third of said land, to be divided into three equal parts and drawn for by the parties, if they could not otherwise agree. The bond was dated September 25, 1851. After alleging the bond, the petition continued: And although your petitioner hath performed all and singular the conditions to be done and performed by him aforesaid, and hath been able and willing and hath tendered to the said defendant the money to defray the aforesaid expenses of procuring the title, yet the said defendant hath not, etc., but hath wholly neglected and refused, etc., to the damage of plaintiff five hundred dollars. The value of the land was not alleged. Prayer for judgment for his aforesaid debt of twelve hundred dollars with interest thereon from the time the same became due and payable, with damages and costs of suit, and general prayer for relief.

Amendment of petition, alleging that after the making of the said writing obligatory by the said defendant, the plaintiff, in good faith and with the intent of complying with and performing those things which he had stipulated and contracted to do for the said defendant to entitle himself to a title to one-third of the two-thirds of the said headright certificate from the said defendant, did locate the said headright certificate of the said Ennis Hardin for two-thirds of a league and labor of land on the waters of Beach creek, in the county of Tyler, and that he caused the location of said certificate to be surveyed by a competent surveyor; to be examined and approved and recorded in the county surveyor's office of Tyler county; and that he did cause the field notes of said survey to be returned to the commissioner of the general land office, for a patent to be issued thereon, when the said defendant borrowed the certificate from the possession of plaintiff and thereafterwards placed the said certificate in the hands of Zimni Wms. Eddy, with instructions to return them to the general land office for the purpose of procuring a patent thereon, and not to let the plaintiff have the certificate or the patent. Your petitioner further represents unto your honor that after the return of the said field notes of the said survey to the general land office, the said defendant did sell and transfer the whole of the said certificate unto William A. Ferguson and Zimni Wms. Eddy, and that they transmitted the said certificate to the general land office, with the said defendant's transfer thereon, upon which the commissioner of the general land office did issue to them the patent for the said certificate and survey of land. Your petitioner further represents unto your honor that the said sale and transfer of the said certificate was without the knowledge and consent of your petitioner, by means of all which your petitioner has been prevented from performing, or perfecting the title to the said land so located and surveyed, to the great damage of the said plaintiff five thousand dollars, wherefore he sues and prays as in his original petition.

Defendant demurred; pleaded general denial; and specially,

That the land was surveyed by virtue of said certificate previous to the first of August, A. D. 1853, and that the tract so surveyed is of great value, and that by reason of the said plaintiff refusing and neglecting to comply with his stipulations, the said location was and is lost to this defendant to his great damage, wherefore he prays judgment and puts himself upon the country.

And further answering, this defendant says that the said plaintiff did represent to this defendant the inability of him, the said plaintiff, to comply with his agreement to obtain a patent for said tract of land, because he, the said plaintiff, did not have the money necessary to pay for said patent, and requested this defendant to advance the sum necessary, to which he consented; and the said plaintiff promised to deliver to this defendant or his agent the field notes of the said survey, which was necessary to the obtaining said patent, which promise the said plaintiff wholly neglected and refused to do; and by reason of said neglect and refusal to deliver the said field notes, this defendant was unable to obtain the said patent; by reason whereof he says he has been damaged, prays judgment and puts himself upon the country.

And the said defendant further answering says, that the said plaintiff being in possession of said field notes, did neglect and refuse to take the steps necessary to obtain the patent for said tract of land, by paying the sum of money required to obtain the said patent, or to deliver to this defendant or his agent, Z. W. Eddy, the said field notes until after the first of August, A. D. 1853, and that in consequence of said refusal, neglect and delay, the said location and survey became forfeited and vacant; that said survey contained thirty-one hundred acres, and was worth one dollar per acre; and that when the said survey became vacant the said plaintiff did locate thereon another land certificate, to the great damage of this defendant, to wit: the damage of two thousand and sixty-six dollars; wherefore he prays judgment and puts himself upon the country.

The statement of facts was as follows:

That the defendant deposited with Z. W. Eddy a certificate in the name of Ennis Hardin, for two-thirds of a league and labor of land, and requested Eddy to present it at the general land office and get a patent thereon, and informed him that the field notes would be in the possession of Col. Charlton; that in November, 1851, Eddy and Col. Charlton met at the city of Austin, when Eddy informed Col. Charlton that he had the certificate of Ennis Hardin and was ready to advance the money necessary to obtain the patent, and requested that the field notes might be handed to him. Col. Charlton refused to give up the field notes unless he could control the patent, which Eddy refused, as he had been instructed by King to get and retain the patent subject to the joint order of King and Gray. The plaintiff introduced the bond declared on in the petition in evidence. Witness (this statement is given in the terms of the transcript.--REPS.) further stated that he handed the certificate to King on his return from Austin, and in the spring or summer of 1853, previous to the departure of King to New York, King handed him the certificate again, and told him if he got the patent to hold on to it for the joint benefit of plaintiff and defendant till he, King, came back from New York, and that King was gone several months, as many as six.

The defendant read in evidence a letter from W. B. Gray to Wm. King, as follows:

TOWN BLUFF, Jan. 27,--52.

MR. WM. KING-- Dear Sir: You must, without fail, attend to getting that title fixed, and send them by Eddy or Doom. I shall send the field notes on by Charlton. If you do not attend to it, it will give us a great deal of trouble. Yours respectfully. Signed by the plaintiff.

The deposition of Wyatt Hanks, read in evidence, was as follows: He says he...