Sparks v. Dawson

• Decision Date: 01 January 1877
• Citation: 47 Tex. 138
• Parties: JAMES H. SPARKS v. N. N. DAWSON.
• Court: Texas Supreme Court

47 Tex. 138

JAMES H. SPARKS

v.N. N. DAWSON.

Supreme Court of Texas.

1877.

APPEAL from McLennan. Tried below before the Hon. J. W. Oliver.

A detail of the facts testified to in this case would serve no useful purpose, and would only add another chapter to the curiosities of the law. Over fifty witnesses were examined, most of whom assumed to be familiar with the same facts about which they testified, and one half of them were contradicted by the other. The opinion contains all that is necessary to be stated regarding the facts of the case.

Herring & Anderson, for appellant, on the proposition that the charge of the court, requiring the fraud alleged to be established beyond a reasonable doubt, was erroneous, cited Pilkinton v. The State, 19 Tex., 217;Wroth v. Norton, 33 Tex., 192;Layton v. Hall, 25 Tex., 212;Linn v. Wright, 18 Tex., 337; Kerr on Frauds, 388; 19 Mich., 57; 1 Story's Eq. Jur., 186-7, Story on Sales, 138, sec. 160.

F. H. Sleeper, for appellee.--There is no error in the charge of the court. The verdict of the jury was in accordance with the evidence.

Kerr, on Fraud and Mistake, says: “A man who alleges fraud, must clearly and distinctly prove the fraud he alleges. * * * If the fraud is not clearly and distinctly proved as it is alleged, relief cannot be had, although the party against whom relief is sought may not have been perfectly clear in his dealings. * * * The law in no case presumes fraud. The presumption is always in favor of innocence, and not of guilt. In no doubtful matter does the court lean to the conclusion of fraud. Fraud is not to be assumed on doubtful evidence. The facts constituting fraud must be clearly and conclusively established. Circumstances of mere suspicion will not warrant the conclusion of fraud. If the case made out is consistent with fair dealing and honesty, the charge fails. It is not, however, necessary, in order to establish fraud, that direct, affirmative, or positive fraud be proved. * * * It is enough if facts be established from which it would be impossible, upon a fair and reasonable conclusion, to conclude that there must be fraud.” (Pp. 382, 383.)

This text of Mr. Kerr is fully sustained by decisions referred to in the foot-notes of his book, and we submit that the instructions given to the jury are fully in accordance with it.

In the case of Paxton v. Boyce, 1 Tex., 317, the court says: “Fraud cannot be presumed, unless the circumstances on which such presumption is founded are so strong and pregnant that no other reasonable conclusion can be drawn from them.” Judge Lipscomb has used language fully as broad as the court below used in the case at bar.

In the case of Turner v. Lambeth, 2 Tex., 365, the same distinguished jurist says: “It is believed to be a rule of universal application, in both courts of law and equity, that fraud must not be presumed; that until proven, the presumption is in favor of the fairness of the transaction.”

In Tompkins v. Bennett, 3 Tex., 36, the court again says: “Fraud cannot be presumed; it must be actually proven, or be a conclusion from facts that will not admit of any other conclusion consistent with fair dealing.”

In Cowen & Hill's and Edwards's Notes on Phillips's Ev., 605, the authorities referred to assert the doctrine that “after every effort to establish fraud, if it remains doubtful upon the proof, innocence is to be presumed.” Among the same notes, on page 608, the authors say, that while fraud is not to be presumed, yet, “like crime,” it may be made out upon circumstantial testimony. We apprehend that they intend to say that proof of fraud must be as clear as proof of crime, and that the rules applicable to one are applicable to the other.

Hovenden on Frauds, vol. 1, p. 23, quoting Chief Justice Treby, in Bath and Montague's case, says, courts of equity “will not convict any man of fraud where the evidence is doubtful.”

In Conard v. Nicoll, 4 Peters, 295, this court says that actual fraud is not to be presumed, but ought to be proved by the party who alleges it. If the motive and design of an act may be traced to an honest and legitimate source, equally as to a corrupt one, the former ought to be preferred.”

In Clarke et al. v. White, 12 Peters, 196, the court says: “Truly, there are strong grounds of suspicion, but fraud ought not to be conceived; it must be proved and expressly found.”

In Buck v. Sherman et al., 2 Doug., (Mich.,) 176, the court says: “Frauds will not be presumed on slight circumstances; the proof must be so clear and conclusive as to leave no rational doubt on the mind as to its existence.”

The law which we have quoted is peculiarly applicable to alleged frauds in writing. When parties have reduced their contract to writing, it is presumed that the whole sense of the parties is included therein. The testimony ought to be beyond doubt, which could bind them beyond the express terms of writing. If the contract rests in parol, the reason for the rule would not appear so cogent. In the case at bar, the defendant sold to plaintiff, in writing, “seven hundred and fifty-two head of cattle, according to his books.” The effort is made to bind him to a parol contemporaneous representation that there were in the stock one hundred and eighty head of beeves; that they were well kept, gentle, etc.

Story, in his work on Equity Jurisprudence, vol. 1, p. 152, says, of parol testimony offered to vary a written contract: “But if the proofs are doubtful and unsatisfactory, * * * equity will withhold relief, on the ground that the written paper ought to be treated as a full and correct expression of the intent, until the contrary is established beyond a controversy.” This language is used in reference to alleged mistakes in contracts; but it will be seen in the paragraphs immediately succeeding, that it applies also to alleged frauds in contracts, and it ought to apply with much greater force.

Story on Sales says: “Fraud must be clearly established by proof, in order to vitiate a contract. * * * No cases, therefore, in which the circumstances are doubtful will afford sufficient evidence of fraud.” (P. 149, § 160.)

If it is admitted that the language in that part of the instruction which is complained of, taken by itself, is not the law, then we say, that when the whole instruction is taken together, the language complained of is so qualified that no error was committed. Taken as a whole, it was not possible for the jury to have been misled by the charge, and it is to the whole charge that the jury must look for the law, and not to detached portions of it.

The necessity for proof of fraud, to be beyond doubt, is asserted in the following cases: 3 Story's C. C., 516; 6 Pet., 691;2 Johns. Ch., 630;9 N. H., 392; 10 Ver., 452; 11 Ver., 138; 15 Ver., 448; 5 Mason, 577;1 Pet., 13;22 Pick., 69;10 Paige, 526;2 Bibb, 246; Chitty on Conts., title “ILLEGAL CONTRACTS,” 1 Phil. Ev., (4th Am. ed.,) 577.

ROBERTS, CHIEF JUSTICE.

The principal question in this case is, Did the court err in the charge given, and in refusing the charge asked by the plaintiff? The evidence was conflicting, each party having adduced ample evidence in support of the cause of action on the one hand, and of the defense on the other. If, therefore, there is no error in the charge of the court, by which the jury was misled, the verdict and judgment in favor of the defendant cannot be disturbed. But the fact that there is in the case so direct a conflict, so well sustained on each side, renders it very important that the jury should have been furnished with the correct rule of law, in determining the proper result to be arrived at in finding their verdict.

The written instruments, executed by the parties respectively in making the trade, intrinsically considered, would determine the case in favor of the defendant, upon the supposition that each party had fulfilled the terms thereof, which might be presumed, unless the contrary was made to appear. The object of this suit, on the part of the plaintiff, is to show that they have not been fulfilled on the part of the defendant, and that there are collateral facts, not embraced in the written instruments, in connection with, and constituting part of the trade, which authorize him to demand a rescission of the contract, as claimed by him in this suit. Those facts were, in substance, that Dawson represented his stock of cattle to consist of eight hundred head, including one hundred beeves; that plaintiff had no opportunity of examining the stock for himself; that he relied upon...