Calhoun v. Wright , 23 Tex. 522 ( 1859 )

Bell, J.

This case was before this court upon a former appeal. The opinion of this court, reversing the judgment of the District Court on the first trial, may be found in 19 Texas Rep. 420. The testimony upon the last trial, as exhibited by the present record, varies in some respects from the testimony on the first trial, as presented to this court upon the former appeal. But the aspect of the case, upon the whole, is not materially changed.

We can perceive no error in the judgment of the court below; and we think there was no error in the rulings of the court during the trial, which are complained of by the appellant. The appellant’s co-defendant, Rodgers, was not a competent witness for him, and there was therefore no error in overruling the motion for a continuance of the cause, for the want of the testimony of the said Rodgers."

The testimony shows, clearly enough, that Rodgers was acting as the agent of Wright, and proclaimed to others that he was so acting. The former opinion of this court, (19 Texas Rep. 420,) stated that the circumstances under which the defendant, Rodgers, purchased the land, at the sheriff’s sale, showed that he was acting as the agent of Calhoun, in making the purchase. It was also stated, that the acts of Rodgers at the time of the sale of the land by the sheriff, were in fraud of the rights of the appellee, whose agent Rodgers also was. It was also said, that nothing could be more perfectly clear, than, that Calhoun could not avail himself of the fraudulent contract of his agent, Rodgers, under such circumstances; and the general rule was asserted, that the principal cannot, in any case, avail himself of the fraudulent acts of his agent, to the injury of an innocent third person. The portions of the former opinion, here alluded to, are all equally applicable to the case in its present aspect.

The record does not disclose the fact, that the purchase-money, ($650,) paid by Calhoun to Rodgers, on the day of the sale by the sheriff, was appropriated by Rodgers to the payment of the judgment debt against Wright. It is probable that the money was so appropriated by Rodgers, and that the fact furnishes the reason for the tender of the money to Calhoun by the appellee. If the fact appeared of record, that the money paid by Calhoun, did go to the payment of Wright’s debt, Wright might have been required to tender back the amount paid by Calhoun, with interest. But as the case is presented to us, we can perceive no reason for disturbing the judgment of the court below. The judgment of the court below is affirmed.

Judgment affirmed.