Hopson v. Brunwankel , 24 Tex. 607 ( 1859 )

Bell, J.

We are of opinion, that the instrument upon which this suit is founded, is not a contract for the payment of money. If the writing were not addressed to a third person, it would be regarded as an acknowledgment that the sum of money mentioned in the writing, was due from the maker of the instrument to the hearer, and the law would imply a promise by the maker of the instrument to pay the money. But the writing being addressed to a third person, can only be regarded as a memorandum of a fact, or as conveying information of a fact, without legal significance, until explained. The instrument, therefore, being necessarily open to explanation, it was for the jury to find what the fact was, of which the writing was a memorandum, or of which the writing was intended to convey information, or of which it was an acknowledgment, as the case might be.

In this view, we think the court below erred in refusing to give the first instruction asked by the counsel for the defendant. The instruction asked would have presented to the consideration of the jury, a view of the case fully warranted by the testimony; whereas, the refusal to give that instruction, and the instructions given by the court, had the effect to limit the jury, to a certain extent, in the construction which it was their duty to put upon the evidence. For the refusal of the court below to give the instruction to which we have referred, the judgment is reversed, and the-cause remanded for another trial.

Reversed and remanded.