59 Tex. 164 | Tex. | 1883
The ninth assignment of errors brings under review the action of the - court in refusing the instruction • asked by appellant on the question of limitation. The charge asked was as follows:
“ If you believe, from the evidence, that Underwood held said bonds and converted them to his own use in 1867, and that said Underwood used no fraudulent means to conceal said conversion, and that said plaintiff might — by use of ordinary diligence — have discovered such conversion, then limitation begins to run against plaintiff as soon as she, by the use of ordinary diligence, might have discovered such conversion, and is limited to two years in which to bring her suit for the recovery of said bonds.”
The appellant had in his pleadings set up the defense of limitation. The court declined to give this instruction, and in effect refused to submit an issue on this plea in any form to the jury.
It is suggested that the' court refused the instruction because there was no evidence whatever introduced by appellant in support of this issue. It is true that the evidence on this point was not as full or pointed as it might have been made; still .it cannot be fairly said
There was proof offered to the effect that, prior to 1877 (how long before it is not stated), appellee and her father had retained counsel to recover these bonds or their value from the appellant. It was also in evidence that this action of appellees in retaining counsel to bring suit was caused by the hostile attitude assumed by appellant, previous to that date, in relation to these bonds; there having been, before that time, correspondence between the appellant and the father of the appellee on the subject, from which Coolgrove had already learned that appellant would hold the bonds if he could.
There was also other testimony in the record tending to show that before July, 1867, the appellant was very much embarrassed and pressed by his creditors. There was also evidence tending to show that after July, 1867, and in August of the same year, the appellant was still badly involved, and unable to pay his debts; that about that time suits had been instituted against him on the Coolgrove liabilities enumerated in the receipt, and that as the upshot of the matter, appellant went into bankruptcy and was discharged. That about one year before appellant went into bankruptcy he transferred the bonds in question, together with Coolgrove’s note, to Mrs. Borden.
The evidence thus discloses that in the summer or fall of 1867, appellant was sued and pressed by the creditors of Coolgrove, and as a result of that pressure, together with the pressure of his other creditors, he was compelled to go into bankruptcy.
From all these facts, the jury might have been authorized to infer that the transfer to Mrs. Borden, and the bankruptcy of the appellant, occurred as early as the latter part of the year 1867 or 1868. The evidence on this point, it is true, was not very strong, but it did have a tendency to show the fact that the transfer occurred about that date, or at least that it occurred prior to the year 1877.
The testimony, in itself, is of course not convincing either as to the date of the transfer by appellant or the date of his bankruptcy.
The evidence, too, disclosed enough to show that appellant had in his possession or controlled the evidence of the actual date of the transfer, and the date of his adjudication and the date of his discharge as a bankrupt. He also, it is plain, knew the exact date of Mrs. Borden’s death, for he was her executor, and his wife was her sole heir.
• The marked failure, under such circumstances, of .appellant to prove the actual date of the transfer to Mrs. Borden; his failure to show
The withholding of documentary evidence or papers in his possession that would throw light on the question, without any explanation being given as to why they are not produced, is well calculated to create the belief that, if produced, they would not aid the case of the party withholding them. Johannes v. Bennett, 5 Allen, (Mass.), 169; Bayley v. McMickle, 9 Cal., 450; Tobin v. Shaw, 45 Me., 331; Blade v. Noland, 12 Wend. (N. Y.), 173.
It is possible, too, that the jury, had the issue been submitted to them, might have found that the appellant had, upon a view of the whole case, failed to sustain his plea of limitation. Still it certainly cannot be said that there was no evidence whatever before the jury tending to establish the truth of this plea. On the contrary there was undoubtedly evidence on that point, and enough, had the jury deemed it trustworthy, to have authorized a verdict for appellant upon that issue, had the matter been submitted to them.
The court, however, when it refused to instruct the jury at all on this point, and withdrew from their consideration the issue,'practically decided, to all intents and purposes, that there was no evidence at all on this point.
It may b.e added, also, in the same connection on this point, that there was also evidence introduced going to show that from a date long anterior to 1867, and in fact down to the time of trial, appellee or her father, who seems to have had, for all practical purposes, the control of these bonds, if, in fact, he was not the true owner, resided near appellant. His residence from 1860 to the time of trial appears to have been either in Brazoria, Wharton or Colorado counties. There is no evidence that appellant ever deceived him at any time as to the relation in which he stood to the bonds. Doubtless, if he had made inquiry, as it was his duty to do, in 1867, or from that date down to 1874, or at any time prior to 1877, he could have learned the relation in which appellant and Mrs. Borden’s estate stood to these bonds..
There was not even a replication of fraud or concealment made in response to the plea of limitation. Upon the whole, under the pleadings and evidence, we think the court committed an error, prejudicial to the rights of appellant, in refusing to give the instructions asked on the issue of limitation. Or, at least, in not submitting
Complaint is also made of the action of the court in giving the third instruction asked by appellee. That charge was as follows:
“ The authority of an attorney-at-law, under his ordinary employment to bring and prosecute or to defend a suit, does not authorize him, unless so specially, to compromise the business placed in his hands, and defendants are required to show affirmatively that W. L. Davidson was authorized, aside from any employment as an attorney-at-law, to make the compromise alleged in defendants’ amended answer, and defendants must bring home to plaintiff action or acquiescence in giving such authority to said W. L. Davidson, or else plaintiff is not estopped by said alleged compromise. When an agent exceeds the authority given him by his principal, his acts are not binding upon the principal; therefore, if W. L. Davidson was not specially authorized to make the alleged compromise, or if plaintiff has not accepted and ratified such compromise, it is not binding upon her.”
■ It is insisted that, under the facts of the case, this charge gives undue prominence to the individual acts of W. L. Davidson. In other words, that it, in great measure, restricted the jury to the inquiry as to the personal authority of Davidson in the matter, apart from any employment or authority of his as an attorney-at-law, that he might have had, either expressly or by implication, existing in the law firm of which he was a member, and for whom he acted.
While considered in connection with the main charge of the court, it cannot be said that it was, upon a view of the whole case, undoubtedly error in the court to give this charge and to refuse the one asked by appellant on the same subject, yet we are inclined to think, when considered in reference to the evidence of Davidson, from which it was plain that he had not met the appellee, and had no direct instructions' to himself individually from her father or from her to make the compromise, that it was perhaps calculated under the circumstances to mislead the jury.
The fourth assignment of errors, which brings in question the correctness of the ruling of the court in excluding evidence as to the value of the bonds sued on from 1860 to 1878, cannot be revised, as the bills of exception fail to disclose the objection which was raised to the evidence." The appellant has not, in his capacity as executor of Mrs: Borden, appealed, and hence the adverse action of the court ‘on his plea of intervention in that capacity will not be considered.
For the errors above indicated, the judgment of the court is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered March 20, 1883.]
Chief Justice Willie did not sit in this case.
