Bailey v. Hicks , 16 Tex. 222 ( 1856 )

Wheeler, J.

The jury evidently found for the defendant on the first question submitted to their decision by the charge of the Court, under the belief that the goods were furnished at the instance and upon the sole credit of Thomas Hicks; that they were originally charged to him, and that it was understood and intended that he alone was to be looked to and held responsible for the price. And we cannot say that their finding was not warranted by the evidence. There certainly was evidence tending to the conclusion, that the goods were charged originally to Thomas Hicks ; that the credit was given to him alone ; and that it was the intention originally, to look to him for payment. In the absence of the books of original entries, which the plaintiff declined to produce, we cannot say the jury were not warranted by the evidence in so finding. It may be true, that the plaintiff was not bound, in obedience to the particular notice served upon him, to produce his books in evidence. But certainly it was his right to do so, if he saw proper, though their production had not been called for by the defendants. (1 Cow. and Hill’s Notes, 297, n. 201; 1 Grenl. Ev. Sec. 117 ; Underwood v. Parrott, 2 Tex. R. 168.) They, of course, were the best evidence of their contents : and would have shown to whom the goods were originally charged. In the conflict of evidence, and where there might be doubt, they, it would seem, should have been produced, if accessible ; and it is not pretended that they were not accessible. Their production would at once have settled the question. When the evidence was so conflicting, and there was so much evidence going to prove that the credit was given exclusively to Thomas Hicks, the non-production of the books in which the goods were charged, can but be regarded as a circumstance unfavorable to the plaintiff; one which had, and was entitled to have, its weight with the jury, in forming their conclusion as to the fact. There was not wanting a motive for Thomas Hicks to purchase supplies on his own account. His wards were of the family of the defendants ; and their negroes were employed upon the plantation. He was the proper person to make contracts for the purchase of supplies for them. If he did so, and it was the understanding and agreement between him and the plaintiff, that the goods were furnished on his sole credit and responsibility, and that he alone was to be looked to for payment, he was the principal debtor, and not merely a guarantor, or surety; and though the goods may have been purchased and intended for the use of a third person, yet such third person not being a party to the contract with the plaintiff, not having received the credit, or been charged originally upon the sale of the goods, would not be responsible in an action by the plaintiff to recover the price. (Chit. on Con. 445, and cases cited in notes.)

It is said in the application for a new trial, and in argument, that the account was opened and a part of the goods were furnished before Thomas Hicks came to the country. It however does not so appear. The witness, Neely, was employed as overseer by Thomas Hicks, in Louisiana, and came out in February, 1849, bringing with him the negroes, of whom his employer had charge as guardian. Thomas Hicks employed him, but he supposed he and his brother had arranged the matter between them. It does not appear at what timo in the year 1849 Thomas Hicks visited his brother ; but the reasonable inference from the evidence is, that it was before he sent out Neely as overseer, which was in February ; and the first item charged in the account was on the 11th of that month: so that it does not appear that the agreement between him and the plaintiff was not entered into before any part Of the goods was furnished.

Again, it is said the plaintiff was taken by surprise by the defendants' evidence, as they did not apprise him, by their pleadings, of their intention to prove that the' goods were not furnished upon their credit • but on that of a third person. If a proper ground for the admission of the evidence was not laid in the pleadings of the defendants, the plaintiff should have objected to its introduction, at the time. Not having done so, he cannot ask a new trial on the ground that its admission operated a surprise upon him. But it would be difficult to maintain that the evidence was not legally admissible under the pleadings, to explain and rebut the plaintiff’s evidence.— And in his motion for a new trial, he does not mention any witness, or means by which he will be able to disprove or explain, upon another trial, the evidence by which he says he was surprised. He does not say that the entries in his books will afford such evidence. That ground of his motion rested on his own unsupported affidavit and was manifestly insufficient.

As respects the liability of Mrs. Hicks, the charge of the Court was substantially correct, and in accordance with the law as heretofore held by this Court. (Christmas v. Smith, 10 Tex. R. 123; 8 Id. 391 ; Miburn v. Walker, 11 Tex. R. 329.) In its application to the evidence, it certainly was not unfavorable to the plaintiff. It does not appear what separate property the wife possessed. The land upon which the family resided, and some negroes, (it does not appear how many,) had been previously conveyed to her. Fifteen or sixteen hands were employed upon the farm in 1849 and '50 ; but there were sixteen negroes belonging to the wards of Thomas Hicks, upon the farm in those years : how many of these were “hands,” does not appear. But it is unnecessary to examine the sufficiency of the evidence to charge the separate property of Mrs. Hicks, as the ground upon which the jury found their verdict, was irrespective of the liability of her property. We cannot be insensible of the. apparent hardship of the case, upon the plaintiff. But we know of no legal principle upon which this Court can relieve him. If he trusted one who was unable to make satisfaction, it was his misfortune, from which the law cannot relieve, by giving him recourse upon others, whom he did not trust.

It is scarcely necessary to say, what this Court has so often repeated, that the weight to which the statements of the respective witnesses was entitled, and the proper conclusion to be deduced from their testimony, it was exclusively for the jury to decide. We see no legal cause for reversing the judgment : and it is affirmed.

Judgment affirmed.