Bristow v. Hall

16 Tex. 566 | Tex. | 1856

Wheeler J.

It is quite too clear for doubt or controversy, that the evidence was sufficient to warrant the jury in finding, mot only that the note was without any consideration to support the promise of the defendant, but that he made the purchase in the expectation, induced by the representations of the plaintiff, that, under the contract, he would be enabled to obtain from Phillips a title to the land ; which was the inducement to the purchase; when, in truth, Phillips does not appear ever to have had any right or title to the land whatever ; or the ability to make a title. It does not appear that Phillips -ever, in fact, had a valid certificate located upon the land; he never furnished the Surveyor the evidence of its recommendation, or genuineness.- If genuine, it was of no avail; the title was in another: and so the jury were warranted in finding that the defendant was deceived and mislead to his prejudice by the representations of the plaintiff, which proved to be unfounded.

There is reason to believe that the contract of Phillips to make title was worthless ; but if it was not, it did not answer the purpose intended ; and the defendant has done all in his power to place the plaintiff in statu quo, by restoring to him the contract. For aught that appears it is as available to the latter now as it ever was, and he has sustained no injury at the hands of the defendant. The indorsement upon it, of a transfer to a third person by the defendant, cannot affect his right to a rescission of the contract; for the reason that no delivery of it appears to have accompanied the indorsement, without which it could not take effect as an assignment; the defendant retained it in his possession ; brought it into Court to be delivered up to the plaintiff; and no third person has -asserted any claim of right under the supposed assignment.— Under the evidence and law of the case, the finding of the jury was legal and correct; and the judgment is affirmed.

Judgment affirmed.