2 Tex. 365 | Tex. | 1847
delivered the opinion of the court.
This case was before us at the last term, on a judgment rendered in the court below in favor of the present appellant on a demurrer.
In the amended petition the plaintiff has abandoned the-
The agreement set out in the first part of the petition is the same that was made a part of the petition ir its original form» As the main question for our consideration is, whether a breach of this contract furnishes a legal cause of action, we-will for the sake of the more easy reference state here the substance of its contents. It commences, that whereas, ¥m. M. Lambeth has sued Wm. E. Jones in the court of chancery of the state of Mississippi, and whereas, the property levied on has been restored to S. S. Turner, “ now executor of the said Jones, since deceased, who personally binds himself faithfully to discharge the trust of possession conjointly with B. Sellers, now the overseer on the plantation as agent of said Wm, M. Lambeth, until the debt amounting to ten thousand four hundred and ninety dollars and thirty-five cents be finally settled together with the legal interest, costs, etc. And. whereas, the said Jones did claim during his lifetime certain offsets against said Lambeth’s claim, which are yet in controversy, and the parties, viz.: the executor of Jones, the said'S.S. Turner, and the said Lambeth being anxious to compromise said suit, it is therefore agreed that said property attached in said-suit shall remain in po^ession (and not to be removed) of said executor and B. Sellers, the crops to be shipped to-said Lambeth and applied to the said debt, and a decree rendered by the chancellor of said state in vacation, for the full, amount of the said claim and for costs of suit. But-it is understood that no execution shall issue, thereon, provided th& crop be faithfully shipped sooner than April, 1843. And presuming that two crops will pay the debt, it is further -understood that said offsets, when ascertained by the parties, either by suit or by arbitration, shall be credited against so much of the said decree as may remain unpaid after deducting said-
It is believed to be a rule of universal application in both courts of equity and law, that fraud must not be presumed; that until it is proven, the presumption is in favor of the fairness of the transaction. Can, then, the clause referred to in the contract bear a reasonable interpretation, consistent with fairness and good faith, for it must be admitted, if it stood •alone and unconnected with any other of the stipulations contained in the instrument, it might .justly be interpreted to mean some secret and fraudulent intent concealed under the
Besides the general demurrer, there were several exceptions to the petition, but none of them we believe were well taken. The breaches are well assigned. The plaintiff avers in his petition that the money, nor any part of it, had been paid. It was not necessary that he should have averred that the crops had not been sent and applied to the payment. This fact is shown by the averment that the debt, and no part of it, had been paid. He avers, too, that the defendant had removed the property from the state of Mississippi to Bed River county,, which of itself was an assignment of a breach sufficient to sus’.tain the action.
The case was put to the jury on the other pleas and a verdict was found for the plaintiff. There was no motion for a new trial, consequently we are not called upon to decide whether the evidence supported the finding of the jury or not. And it only remains for us to consider the points presented by the different exceptions to the charge of the judge.
The first was to permitting the plaintiff below to-amend his petition, and ruling the defendant to answer, without service of the copy of the amended petition. The terms on which an amendment shall be made are at the discretion of the court, but that discretion should always be exercised in a way as not to operate as a surprise on tbe other party; and in this case, if the amended petition was, from its amended features, calculated to have that effect, the court would have protected him by granting a continuance. It appears that, in fact, the cause was continued, and the defendant could not complain that he was hurried into the trial without time to make his defense. In this case the mandate of this court instructed the court below to allow an amendment. The petition, as it was originally filed, was thought by this court when the case was before us at the last term, to be unnecessarily prolix, and to embrace a great deal that might well have been omitted. Hence, the instructions to the court below to permit an amendment for the purpose of dropping all unnecessary matter. The petition, as amended, embraced no new matter not contained
The second exception is to the court’s permitting a new petition to be substituted for the amended one, it having been lost, ■and the addition of a new count. It appears that after the amended petition had been filed, it was lost or mislaid, so that 'it could not be found at the term»when it was next called. The court, after receiving proof by affidavit of the loss of the amended petition, granted permission to the plaintiff to file another one, and, that the defendant have leave to answer or not, as he might choose. It does not appear that the defendants wished time to answer anew, but that they relied on the answers already filed. Upon the addition of a new count, if it was material, and calculated from its character to surprise the defendant, his remedy was to ask a continuance. It was certainly competent for the court to have allowed the new and additional count. The defendant did not pretend to be surprised, or to want further time; the objection on his part seems to have been to the authority of the court to permit the substituted petition, with the additional count. This the court clearly had a right to do. We believe that, in this instance, it would have been competent for the court to have permitted an amendment to be made by filing a new petition in the place of the lost one, particularly when there was sufficient before the court to amend by, independent of any statutory provision on the subject, and it surely could not be doubted that the plaintiff could have resorted to the original petition, to which the one lost was an amendment, and the substitute would have been an amendment to that original.
■The act regulating judicial proceedings, of 1846, p. 371, sec. 34, enacts “ that the pleadings in all suits may be amended under the direction of the court upon such terms as it may prescribe, at any time before' the parties announce themselves ready for trial, and not thereafter; but no amendment shall prevent a suit from being tried at the same time it may be made, unless the court be satisfied that such amendment operate as a surprise to the opposite party.” The section just
Besides the exceptions we have noticed, the defendant excepted to the charge of the judge to the jury. It seems from the bill of exceptions that “ both parties permitted the j ury to retire without a charge from the court, and the jury not. agreeing, the court proceeded to charge the jury on the solicitations of the plaintiff’s attorney, to which course the defendant excepted. The court charged the jury as a fact within the judicial knowledge of the court, although none of the-papers in the original suit were before the jury, that this suit was but an amendment of the old suit, and that the original petition was filed on the 23d of December,. 1844. The court charged the jury that the contract sued upon could be sued upon here, although it could not be sued -upon in the state of Mississippi, where the same was made, it having there passed into a decree. The court charged the jury that the best evidence of the jurisdiction of the chancery court of the state of Mississippi on the contract was the exercise of jurisdiction by that court in the case as shown by the introduction of the record of that court by the defendant.”
It is believed tobe the common practice, where the jury cannot agree, for the court to charge them on their return. Their having gone out without a charge, and not agreeing, placed them before the court, on their return, precisely as if they had never retired. Had the jury agreed on their verdict, and come before the judge to return the same, it would seem objectionable then to give a charge, but this, though an irregularity, we are by no means prepared to say, would be sufficient to reverse the judgment. Such a course is not unfrequent, and under some circumstances it would not perhaps be wrong to charge a second time, when any of them should ask a charge on a particular point, before they would assent to the verdict being recorded. That the judge charged the jury that he could judicially know that the suit was commenced on a particular day, is not objectionable; the whole record is before him and requires no verification, and if that gave the information, there was no error in his informing the jury that he
There is nothing more in the charge of the judge that is-deemed material to be noticed. We see no error in the judgment, and it must therefore be affirmed.
See 1 Texas Reports, 864.