Sanger v. Thomasson

• Decision Date: 02 February 1898
• Citation: 44 S.W. 408
• Parties: SANGER et al. v. THOMASSON.
• Court: Texas Court of Appeals

44 S.W. 408

SANGER et al. v. THOMASSON.

Court of Civil Appeals of Texas.

February 2, 1898.

Appeal from Navarro county court; J. F. Stout, Judge.

Action by E. P. Thomasson against Sanger Bros. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Frost, Neblett & Blanding, for appellants.

FLY, J.

This is a suit for damages instituted in the county court of Navarro county by appellee to recover of appellants the sum of $333.96, damages arising from the conversion of certain goods. The trial resulted in verdict and judgment for appellee. The goods had belonged to one McCracken, who was a debtor of appellants, and were sold by him to J. T. Taylor, who sold them to appellee. The issue was fraud in the transfers of the property.

The first assignment of error complains of the action of the court in refusing to strike out the testimony of appellee as to the circumstances and terms of the purchase of the goods by him from Taylor, on the ground that a written bill of sale was produced, and nothing antedating it could be testified about. The bill of exceptions shows that appellants excepted to the action of the court in not excluding testimony by appellee that he bought the goods from Taylor on a certain date at a certain price. The admission of the testimony could not have prejudiced the rights of appellants, for the reason that the facts objected to were embodied in the bill of sale, which was read in evidence.

The second, third, eleventh, twelfth, and thirteenth assignments of error, not being copied into the briefs, will be considered waived by appellants.

The following charge requested by appellants was refused: "Fraud is a fact that can be proven like any other fact, and may be proved by circumstantial evidence as well as by direct and positive evidence. In this case you will look to all the facts and circumstances, in determining whether the sale from McCracken to Taylor was fraudulent, and whether, if fraudulent, Thomasson knew of such fraud. And if you find such sale was fraudulent, and that Thomasson either knew or could have known of such fraud, then you will find for defendants." The latter portion of the charge is erroneous, in making too onerous the duty of Thomasson in ascertaining the fraud. By the charge, if he could, by the most extraordinary diligence, have obtained knowledge of the fraud, the sale was invalid. Such is not the law, the party buying under such circumstances being held only to ordinary diligence. The charge does not belong to that class of instructions which, though defectively stated, would be sufficient to call the attention of the court to the issue presented, and render a failure to give a proper charge such error as would necessitate a reversal. While no definite rule has been laid down by the supreme court on this question, we infer, from the class of cases in which reversals have followed from a failure to present issues presented in defective charges, that the rule should be that when an issue raised by the pleadings and evidence has not been submitted in the charge of the court, and a party calls attention to such omission in an erroneous requested instruction, it is the duty of the court to formulate and present an instruction properly covering such issue, and a failure to do so is error. But when such defective charge merely embodies a principle applicable to any like case, and does not present an issue, if it is...