Mcmullen v. Kelso

• Decision Date: 31 December 1849
• Citation: 4 Tex. 235
• Parties: MCMULLEN v. KELSO, EX'R OF GRAY.
• Court: Texas Supreme Court

4 Tex. 235

MCMULLEN

v.KELSO, EX'R OF GRAY.

Supreme Court of Texas.

December Term, 1849.

Where there is no statement of facts or bill of exceptions, the giving or refusal of instructions to the jury can form no ground for the reversal of the judgment.

Where a contract is divisible, and the entire performance of it is prevented by the death of one of the parties, an apportionment should be allowed. (Note 51.)

In a suit on a title bond for specific performance, or, in case of disability to make title, then for damages, the jury found “for the plaintiff one-fourth of the value of the league of land in question, valued at one dollar per acre:” Held, That it was proper to enter judgment in favor of the plaintiff for the amount of money to which one quarter of a league of land would come at one dollar per acre.

Error from Bexar.

Howard, for plaintiff in error.

Webb and Neill, for defendant in error.

HEMPHILL, CH. J.

This action was brought for the specific performance of a bond to make title to one league of land, or for compensation in the event that the defendant had in any manner precluded himself from making a full and perfect title. The defendant pleaded that the bond was obtained by fraudulent representations; that the consideration was professional services, which were never rendered; that he had previously employed George W. Lewis to prosecute the suit in which the testator was to have rendered his services; that he had executed a title bond to the said Lewis for another league of land; that he, Lewis, afterward became paralytic and had never rendered any or but little service to the defendant; that by the artful representations of the testator he was induced to transfer by deed the said league of land to Lewis, in order, as he had been induced to believe, that the said Lewis might be enabled to convey the land to the testator for the purpose of securing his professional services to the final termination of the suit. He further alleges that shortly after said conveyance the testator assured him that he was the partner of Cornelius Van Ness, a lawyer of acknowledged ability, and to secure his services it would be necessary to assign to him, the testator, a league of land; that the said Van Ness was not engaged by said Gray as assistant counsel in behalf of the defendant, but was retained by the adverse party in the said suit, and that he was induced by the false and fraudulent representations of the testator to make the bond described in the plaintiff's petition; that the first league was received by Gray in remuneration for his services; that he is not aware of any having ever been rendered by said Gray, etc.; and that it would be inequitable to make him liable in the premises. In an amended answer he alleges that the services of both Lewis and Gray were not worth more than one hundred dollars; that the league conveyed to Lewis, and from him to Gray, is worth five or six thousand dollars; that Gray had full notice of the consideration and condition of the said contract and deed of conveyance. The defendant avers that, the said Lewis and Gray having failed to comply on their part, he is not bound to pay anything, and at all events not more than their services are reasonably worth in money, or such part of the land as would be a reasonable compensation for the services actually rendered. The defendant prays for a rescission of his contract with both Lewis and Gray, that the answer may be taken as a cross petition, etc.

The cause being submitted to a jury, they found for the plaintiff one-fourth of the value of the league of land in question, valued at one dollar per acre.

There is no statement of facts or bill of exceptions. Several instructions were asked by the plaintiff, all of which were refused except one to the effect that if th...