Flack v. NeillFlack v. Neill
- Reporters:
- Before:
- Bell
There was error in the charge of the court.
The right of a party to recover reasonable attorneys’ fees, as special damages, in cases of fraud, is confined to cases where a party is obliged to tаke the initiative, in order to redress a wrong perpetrated through fraud or malice. Where a plaintiff has an apparently good cause of action, arising ex contractu, and the dеfendant sets up fraud, as a defence, he cannot rеcover special damages.
In the case of Bracken v. Neill, 15 Tex. Rep. 109, the District Court allowеd the plaintiff, Neill, to recover special damagеs, on the ground that the defendant, Bracken, had committed a fraudulent breach of trust, in the misuse of money committed to his care; and that Neill had been driven to his action, to recover the money. It appeared, however, that nо money had, in point of fact, been entrusted to Bracken; but that Bracken, being indebted to Neill, undertook to pay thе amount of his debt to a third person, to whom Neill wished to transmit the *256amount, and had executed a receipt to Neill, reciting that the money had been placed in his hands, by Neill, to bе by him handed over to the third party. Upon this state of the case, this court required Neill to remit the special damages, which he had recovered as attorneys’ fees, in the court below. The defendant in the present case, had nо right to recover damages, much less against an administratоr, whose duty it was to prosecute the suit which he found pending at the time of his intestate’s death.
There was also error in thе second instruction given to the jury. They were told that, if they believed from the testimony, that the note sued on was given in consideration of a debt due from another, which was, at the datе of the note, barred by limitation, they should find for defendant.
In the absence of fraud, or any circumstances of imposition, a party may undoubtedly bind himself to pay the debt of another, although the debt be barred by limitation, at the time of the new сontract.
The judge below, on the trial of this cause, so frаmed his charge to the jury, that they could not find for the plaintiff, without first arriving at the conclusion, that the debt, for which the note was executed, was not barred by limitation, at the date of thе note; and yet, the jury were not told what circumstances, оr what lapse of time, would bar the original debt.
Resides, if the quеstion of limitation was a material question in the case, thе burden of proof was on the defendant, to show that the оriginal claim was barred by limitation; and the plaintiff could not bе called upon to show that the claim was not barred. Thе question of fraud should have been distinctly submitted to the jury, for that was the main question in the case. The judge ought to have instructed the jury, what circumstances would constitute such a fraud, as thе defendant could properly claim to be relieved against; for it is not every fraud against which the law will relieve.
Thеre was error in the judgment, for which it is reversed, and the cause remanded for another trial.
Reversed and remanded.