McAfee v. Robertson

41 Tex. 355 | Tex. | 1874

Moore, Associate Justice.

The judgment in this case must be reversed for each of the three grounds presented in the assignment of errors, viz: First, the jury decided contrary to the law and evidence; second, the court erred in not granting a new trial to plaintiff and in overruling his motion for a new trial; third, the court erred in its charge to the jury, &c.

All of the allegations of the petition are fully and clearly proved by the testimony submitted to the jury on behalf of the plaintiff. This was done, it is true, almost entirely by the unsupported testimony of the plaintiff himself; but there was no conflicting or contradictory evidence on behalf of the defendant tending to rebut anything testified to by him, nor is there anything apparent in the record from which we can say that the jury were authorized to disbelieve his statements and discard his evidence. The inaccuracy in multiplication in his petition, as to one item of his account, evidently an oversight of his attorney, which was corrected in the exhibit, upon which comment has been made by the attorney of appellee, is of no importance and entitled to no consideration.

From the fact that the jury returned a verdict directly contrary to the uncontradicted testimony of the plaintiff, and that the court refused to set it aside, it seems altogether probable that the court, as well as the jury, regarded him as unworthy of belief in a case in which he was directly interested, either from their knowledge of his character for truth and veracity or a like knowledge as to the extravagant and unreasonable nature of the charges made by him for the work and labor for which his suit was instituted. If so, such facts should have been presented as to justify and support their conclusion, not only that appellant might have bad an opportunity to meet aud contradict them, if in his power, hut also that this court might see that the court below was correct in its action. So long as parties are permitted by law to testify in cases in which they are interested, and they are neither discredited nor contradicted, we see no ground for a total disregard of their testimony more than that of any other- witness.

The court instructed the jury that, unless the defendant ratified and agreed to be bound by the contract which had been made by his wife, they must find for the defendant. This instruction, in view of the nature of the contract, the facts and circumstances under which it was made, the protracted absence of defendant before and after it was made, was, we think, clearly erroneous, and in direct conflict with the former decisions of this court iu respect to such contracts. (Wright v. Hays, 10 Tex., 130; Fullerton Doyle, 18 Tex., 3; Thomas v. Chance, 11 Tex., 634; Cheek v. Bellows, 17 Tex., 613.)

For the errors in the charge of the court and verdict of the jury the judgment is reversed.

Reversed and remanded.