26 Tex. 127 | Tex. | 1861
Since this case was before us on a former appeal, (20 Tex. R., 164,) the plaintiff has amended his petition, making a nerv party and charging specifically and sufficiently the facts constituting the alleged fraud in procuring the settlement .¿¡and receipt for freight, which the plaintiff seeks to avoid in order to enable him to recover in this action.
The fact that there have been several concurring verdicts, should, I think, strongly incline this court against disturbing the present, if it is to be regarded as a finding of the jury upon the evidence, uninfluenced and unbiased by the instructions given by the court. Upon a question of positive fraud, the court will be very slow to disturb the verdict of a jury where the evidence discloses suspicious circumstances of a character to induce the belief
To support a recovery by the plaintiff in this case, he ought to, satisfy the jury by competent evidence that the goods were damaged before they came into his possession; and that when he made the settlement and gave the receipt for freight, he acted in ignorance or under a mistake of fact; or that he was induced or influenced thereto by some imposition practiced upon him by one or both of the defendants; that some artifice was used, or there was some misrepresentation, concealment, or suppression of some fact which it was material for the plaintiff to knowj a knowledge of which might have caused him to act differently.
Reversed and remanded.