16 Tex. 18 | Tex. | 1856
The Court clearly did not err in refusing a continuance. That papers, which the plaintiffs wished to use upon the trial, were in the possession of the jury who had retired to consider of their verdict in another case, was no ground for a continuance. The Court would not permit the party to sustain an injury for the want of .those papers, but would take measures to put him in possession of them, when they were wanted for the purposes of the trial. If they had been beyond the reach of the Court, or the party, without his fault, the case would have been different. But when they were so easy of procurement, the Court would direct them to be brought in, rather than continue the cause over to another Term for the want of them.
The affidavit did not show the use of proper diligence to 'obtain the testimony of the witness, Cox. The suit had been pending for a considerable length of time; and no excuse is • ¡shown for the omission to have the witness subpoenaed in due time. The issuing of a subpoena but the day before the trial, was not such diligence as the law requires.
It is not so clear that the Court ruled rightly, upon the. admissibility of evidence. No sufficient objection is perceived
The copy of the bond appears to have been admitted, over the objections of the defendant: but, afterwards, it was excluded. The same objections were urged to its admission, as to the testimony of the witness, Smith. But the proof of the existence and genuineness of the original, was certainly sufficient to let in secondary evidence of its contents, unless upon the ground that the loss of the original had not been proved, nor its non-production sufficiently accounted for. The defendant, in withdrawing the bond from the possession of the witness, in whose official custody it had been placed by the plaintiff, must be deemed, under the circumstances, to have tacitly admitted its genuineness. The witness Sheppard testified that the original, of which he retained the copy offered in evidence, was executed by the defendant’s intestate ; and the inference to be deduced from the deposition of Greer is, that the bond was executed by York ; though he does not testify directly to the fact of its execution ; because, perhaps, he was not interrogated directly as to that part. The interrogatories to the witnesses are not copied into the record, though their answers are; and we are not informed to what precise questions the answers were given. The witness states that he was called on by the parties to the bond, to draw for them an instrument, of the description of the one in question ; that he did so ; he presumes the copy exhibited is a copy of the same, and that he signed it as a witness. His name appears as a witness upon the copy ; he left the instrument in possession of the parties. The original of a bond, made between the same parties, and similar, at least, was transferred by assignment by the ob
But the Court may have excluded the secondary evidence of the contents of the instrument, upon the ground that the original might have been obtained by a subpoena duces tecum to Cox, into whose possession it was traced. On this ground, though it is not the ground mentioned in the exceptions, the evidence may have been properly excluded. It was certainly incumbent on the plaintiff to use the means which the law afforded to procure the original; which he does not appear to have done in time. The ruling of the Court in excluding the evidence proposed, therefore, might not afford a ground for reversing the judgment. But there is another ground, upon which, it is clear, the judgment must be reversed. The verdict is not responsive to the issue. The form of a verdict is not material, so that it be intelligible, and find substantially the material issue or issues, submitted by the pleadings, for the decision of the jury. But nothing is better settled, than
Without intending to anticipate, or prejudge the questions which may arise in the future progress of the case, it may be observed that the petition proceeds upon the ground that the plaintiff is entitled to recover the full amount of the penalty of the bond. This is a mistake. It has been heretofore decided, that in an action upon a bond for title, where the petition disclosed that it was not in the power of the defendant to make title, and did not allege any special damage, the measure of damages was the purchase money paid, with interest. (Sutton v. Page, 4 Tex. R. 142.) The petition in this case does not allege any special damage, nor does it allege any facts by which to ascertain the measure of damages to which the plaintiff will be entitled, in case he should establish a right to a recovery, upon another trial. The form of the instrument clearly imports that the sum of money mentioned is a mere penalty, intended as a security for the performance of the contract to make title, and to cover the damages which may be actually occasioned by the violation of the agreement. No other intention can be deduced from the instrument; and it is very clear that no more can, in any event, be recovered upon it, than the actual damages sustained by the plaintiff. (Durst v. Swift, 11 Tex. R. 281-2.)
There were no exceptions to the petition; and no action appears to have been taken by the Court upon the general demurrer. The legal sufficiency of the petition, therefore, is mot before us for revision ; but it is thought proper to correct the evident mistake, as to his rights, under which the party is proceeding, and to suggest the propriety of ascertaining what they really are, before incurring the trouble and expense of further litigation.
Reversed and remanded.
