Mercer v. Hall

• Decision Date: 31 December 1847
• Parties: ELI MERCER v. MARY E. HALL, ADM'X OF A. ANDERSON, ET AL.
• Court: Texas Supreme Court

2 Tex. 284

ELI MERCER

v.MARY E. HALL, ADM'X OF A. ANDERSON, ET AL.

Supreme Court of Texas.

December Term, 1847.

Appeal from Colorado County.

A charge to the jury, that under the plea of a total failure of consideration the defendant cannot show a partial failure, is erroneous.

Though a charge to the jury may embrace erroneous propositions, it is not sufficient cause for a reversal of the judgment, when the effect of the errors is removed by other portions of the charge, and upon the whole, the charge given was not unfavorable to the party seeking the reversal. [ Post, 297; 5 Tex. 211;20 Tex. 247;23 Tex. 452;28 Tex. 371.]

A verdict will not be set aside for a misdirection of the judge, when it is manifest that the party complaining sustained no injury from the misdirection.

A partial failure of consideration may be shown, and will be available to the defendant, pro tanto, under a plea of total failure of consideration.

The appellees sued the appellant upon a promissory note. The defendant in the court below pleaded a failure of consideration, and alleged that the note sued on was given to the intestate, Anderson, as a part of the price of a negro man sold by him to the defendant, and warranted sound, but which proved to be unsound and valueless. The defendants prayed judgment against the plaintiffs for two hundred dollars, a part of the purchase money, which had already been paid.

At the trial, a number of witnesses testified on the part of both plaintiffs and defendant, respecting the condition of the negro, as to soundness, at the time of the sale. The case was submitted to a jury under the charge of the court, who returned a verdict, upon which judgment was rendered for the plaintiff. The defendant moved for a new trial, which being refused, he appealed; and now insists that there is error in the instructions to the jury for which the judgment ought to be reversed.

The charge objected to is, “that the court instructed the jury, that when a total failure of consideration has been pleaded they cannot find a partial failure;” and refused to charge, “that under the plea of a total failure of consideration in this case, the defendant may prove a partial failure of consideration.”

At the instance of the defendant, the court farther instructed the jury, that if they “believe the negro unsound at the time of the sale and warranty, the defendant is entitled to recover the price which he has paid.”

The court also instructed the jury, “that if the slave truly was unsound at the time of the sale, whether the unsoundness was known or not to Anderson (the plaintiff's intestate), he is bound by his warranty in the bill of sale.” Also, “that if they believe from the evidence, that the slave was of no value at the time of the sale, they will find for the defendant;” and also,

“That if they believe from the evidence, that at the time of the sale the slave had the incipient stages of consumption, and died of that disease, in contemplation of law he was valueless;” and “that if the care, attention and nursing of the slave was worth more by one cent than his labor, they should find that he was of no value at the time of the sale.”

Gillespie, for appellant.

Harris, Attorney General, for appellee.

Mr. Justice WHEELER delivered the opinion of the court.

That the charge of the court embraces erroneous propositions is not, of itself, a sufficient cause for reversing a judgment, where, upon the whole, the charge given was not unfavorable to the party seeking the reversal. 4 Litt. 217;3 J. J. Marsh. 508; Id. 717; 6 Monr. 61; 21 Wend. 354;23 Id. 79;25 Id. 417.

It may be true in the case before us, that the court erred in stating to the jury that the defendant, under the plea of a total failure of consideration, could not have the benefit of showing a partial failure; yet if the effect produced by this part of the charge must necessarily have been removed by other portions of the charge, this error of the court can constitute no ground for reversing the judgment.

The plea in this case was that the negro was unsound; this is alleged as the fact in which the failure of consideration consisted. It was for the jury to decide whether this defense was sustained by the evidence. So far as the evidence conduced to prove that the negro was laboring under any disease whatever at the time of the sale, it was that of consumption of which he died. And although the judge did charge the jury that the defendant could not avail himself of a partial failure of consideration, yet he also charged that if the negro, at the time of the sale, had the incipient stages of that disease and died of it, he was valueless; and in that case they must find for the defendant. That disease was doubtless mentioned in the charge for the reason that no other was pretended.

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