Smith v. Oldham , 26 Tex. 533 ( 1863 )

Wheeler, C. J.

—We do not deem it necessary to follow the -assignment of errors and the brief of the appellant's counsel through all the numerous objections to the rulings of the court in the admission of evidence upon the trial. Most of the objections are too manifestly unfounded to require notice; and as the argument does not discriminate and rely on those only which might possibly admit of some question, we do not feel called on to make the discrimination ; and to notice all, seriatim, would be needlessly and unprofitably tedious in a judicial opinion. Some of the questions and ..answers.might have been .so framed as to be less liable to criticism. But we do not perceive that any material error has been committed, in the rulings complained of affecting the merits of the case.

It is manifest from the charge of the court, and the verdict of the jury, that the evidence touching the warranty alleged to have been omitted by mistake in writing the bill of sale, can have had no influence upon verdict and judgment. It is unnecessary, therefore, to revise the rulings of the court upon that subject. The charge of the court made the decision of the case turn upon the question of a breach of the warranty contained in the bill of sale, and not upon any other supposed warranty.

The answers of the plaintiff’s witnesses to cross interrogatories propounded by the defendant’s counsel, were admissible and competent testimony for the plaintiff, conducing to prove an admitted, breach of warranty by the defendant.

When the witness was asked if he did not know, or had not heard the plaintiff say that the controversy between the parties had been compromised, and to state what the compromise was, the natural inference wras, that the witness was desired to state all he knew or had heard from the plaintiff on that subject; and having thus elicited the plaintiff’s statements, the defendant could not exclude^them because they were unfavorable to his case.

The plaintiff was not restricted in his remedy to a suit for a rescission of the contract. His suit was well brought upon the breach of warranty. Nor was he obliged to go to Tennessee (as it seems he must have done) to tender back the property, when it proved wholly valueless, and the defendant refused to rescind the contract. Nor was he obliged to tender a deed of conveyance of the land he had sold the defendant, to enable him to maintain this action. He was not, by the terms of his bond, required to convey until the defendant had performed the undertaking on his part, which was the consideration for the conveyance by the plaintiff. The recovery was fully warranted by the decision of this court in the case of Scranton v. Tilley, (16 Tex. R., 183.) The verdict was well warranted by the evidence, and there is no error in the judgment.

Judgment aflirmed.