Willis v. Bullitt

22 Tex. 330 | Tex. | 1858

Roberts, J.

This is a suit on a note. The defendant below, Willis, answered that the note belonged to Hart, the payee, and that it was given for some barrels of paint; that he was induced to purchase the paint, by the false and fraudulent representations of said Hart, that it was paint of superior quality, and fire-proof; and that it “proved to be of no value, and entirely worthless.” There was evidence tending to show, that it was of some value; and there was no evidence offered to show its diminution in value, below superior fire-proof paint. The court charged the jury to find for the plaintiff, unless they were satisfied that the paint was entirely worthless. This was the issue, which the defendant below had himself made, both in his pleading and evidence, and he has no right to complain that the court made no modification to the charge, because there was no evidence upon which to base it.

Admitting that a partial failure of consideration could have been established, under this plea,—after the defendant had shown the representation as to the quality of the paint, and that such representation was false,—his right to reduce the amount of payment, as stipulated in the note, would he established, although he might fail to show that it was entirely worthless. Still, the extent of that reduction must be shown by proof, just as if a partial failure had been alleged in the first instance: and if he furnishes the jury with no evidence of the amount of the reduction, there can be no use in requiring the court to give them a charge, in relation to the reduction, by which a partial failure of consideration could be found by them.

No party can require more than that the court shall announce the law, with reference to such issue, as it is practicable for the jury to find a verdict upon, considering the evidence adduced in the cause. That the court has done in this case. The judgment is affirmed.

Judgment affirmed.