Rogers v. Broadnax , 27 Tex. 238 ( 1863 )

Moore, J.

The verdict in this case is not only unsupported by the evidence, but is directly contrary to it. When this case was before this court on a former appeal, (24 Tex., 538,) it was held, that the burden of establishing the alleged relation between the notes sued on and the prior arrangement between Broadnax and Means, upon which he relied as a defence, devolved upon Broadnax. It was said by the court: “But the notes were given on the 13th of December, 1854, and are payable at different times, and in different amounts, from those stipulated in the agreement of the 2nd of April, 1853; and prima facie, they were the result of some new arrangement concerning the payment for the land, or had relation to some other transaction. The burden of showing that these notes did not relate to some other transaction, and that they contemplated no new arrangement about the land, and that they were understood by the parties to be given in pursuance of, and in subserviency to the limitations and restrictions of the agreement of 2nd of April, 1853, rested on Broadnax; and to establish this, he was compelled to resort to other evidence, than that which the face of the notes imports, so as to explain the circumstances and understanding under which they were given.” Notwithstanding this clear and forcible exposition of the law of the case by this court, upon its trial in the District Court, the defendant Broadnax not only failed to offer any testimony to sustain his alleged defence, but on the contrary, the testimony offered by the opposite party seems to have clearly disproved it. Under these circumstances it appears difficult to account for the verdict, though it was probably caused by the loose and inaccurate charge of the judge, from which the jury may have inferred, that, if they believed that Broadnax intended, in his own mind, when he executed the new notes, to claim the benefit of the stipulations which were embraced in the original contract between himself and Means, they were authorized to conclude that Broadnax was still entitled to avail himself of this agreement. The rule, however, by which they should have been governed is clearly, not the mere intention of Broadnax, but the understanding of the parties to the new agreement, and those who were acting upon and interested in it.

The record does not disclose the ground upon which the receipt or memorandum, given by Marshall to Means at the time the notes were given, was excluded from the jury, and no reason has been suggested to the court by counsel why it should have been done. This paper seems to have been a part of the res gestee, and, for aught that appears in the case at present, might have been admitted as evidence as such. Although it was not delivered to Broadnax, or executed by him, yet it formed a part of a transaction in which he was a party, and he was shown to have been fully cognizant of its contents, and the purpose for which it was executed.

The verdict of the jury being contrary to the evidence, the court below should have granted a new trial; and for its failure to do so, the judgment is reversed and the cause remanded.

Beversed and remanded.