Garner v. McGowen , 27 Tex. 487 ( 1864 )

Bell, J.

The plaintiff below sued upon a written undertaking of the defendants to indemnify him against certain debts due by .the firm of Bailey & Garner, of which firm the plaintiff was a member. He showed that judgment had been recovered against him upon one of the debts specified in the contract of indemnity, and that the judgment had been assigned -to him for a consideration amounting to the full sum of principal and interest upon it. There was no evidence that Garner acted collusively with the plaintiff in that judgment in receiving the assignment of it. Under these circumstances he was entitled to recover upon the contract of indemnity, unless the instrument of indemnity had been procured by Ms own false or fraudulent representations, or by the false or fraudulent representations of others made under such circumstances as to make him a party to the falsehood or fraud. The evidence shows that false representations were made by Bailey to the defendants, McGowen and Vance, in order to induce them to sign the contract of indemnity, but it is not shown by any sufficient testimony that Garner was a party to these representations. The charge of the court in allusion to these representations was therefore expressed in terms stronger than the testimony warranted, and the verdict of the jury was without sufficient evidence to sustain it.

For the error in the charge of the court, and in overruling the motion for a new trial, on the ground that the verdict was contrary to the evidence, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.