Able v. Chandler , 12 Tex. 88 ( 1854 )

Wheeler, J.

The questions presented by the record, in this case, are settled by the previous adjudications of this Court.

It is true, that the plaintiff, in his representative character, could not bind the estate by his warranty. (Lynch v. Baxter, 4 Tex. R. 431:) And so much of the answer as set up and relied on his alleged warranty, was rightly stricken out. But it is also true, that, though the administrator of an estate cannot bind the estate by his warranty, or render it responsible in damages for frauds or torts, committed by him, yet in his dealings with third persons, in respect to the estate, he is not, by his representative character, absolved from the universal obligation to observe the dictates of natural justice and common honesty, which require that he shall act fairly and not fraudulently. ¡Nor can the estate which he represents be permitted to derive an unjust and unconscientious advantage, to the injury of those with whom its legal representative contracts, by means of his unauthorized fraudulent conduct. (Crayton v. Hunger, 9 Tex. R. 285.) If the averments of the answer were true, they entitled the defendant, if not to a rescission of the contract by reason of his not having asked a rescission with appropriate averments, at least to an abatement of the price contracted to be paid for the negro, in so far as his value was diminished by reason of the vices and unsoundness concealed by the false and fraudulent representations of the plaintiff. To that extent the averments of the answer were a defence to the action; and the Court erred in sustaining the the exceptions to the entire answer.

The Court also erred in rendering judgment for the want of an answer, and without the intervention of a jury, when the defendant had answered by a general denial. Though the general denial did not put the plaintiff upon proof of the execution of the note, it required its production, (Hatossy v. Frosh, 9 Tex. R. 610, 613,) and it precluded the plaintiff from taking judgment by default, for the want of an answer. The judgment is reversed and the cause remanded.

Reversed and remanded.