The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1874-07-19
A. Austin and Another w. John Talk
and Another.

A, Austin and Another w. John Talk
and Another.
The fact that there have been seve-
raj concurring verdicts in cause will
very strongly incline this court against
disturbing the last one rendered, If it is
the finding of the jury upon the evil
dence, unbiased by the instructions OF
the court
Upon question of positive fraud,
this court will be very slow to disturb
the verdict Of the jury when the evil
dence discloses circumstances indica-
tive of artiflce, concealment, misrepre-
sentation, or abuse of confidence.
But where the question of fraud in
fact rests upon clrcumstantial and in
conclusive evidence, it Is especially es-
sential that the finding of the jury be
wholly uninliuenced by the charge of
the court
If u charge of the court, though cor
rect in the abstract and as applicable
to the state of facts supposed by the
court in giving it, Is calculated to in
duce the jury too readily to adopt the
supposed conclusions without consider
ing whether the evidence warrants
their adoption, and the evidence itself
is inconclusive, it will be held errone-
Gus, as tending to mislead the jury.
The relation of attorney and client
would authorize the court and jury in a
case like this to sean the transactions
between the parties with the most Sc
we're scrutiny.
See this case for the strictness of
proof required to set aside n settlement
of damages upon Il freighting contract,
concluded by the parties thereto.
Appeal from Bell. Tried below be-
fore the Hon. N. M. Battle.
For the main facts of this case, see
the reported case of Austin vs.. Talk,
~ Texas r., l64. The cause being then
remanded to the district court, the
plaintiff amended his petition, making
s. Hare a party defendant, and alleg-
ing that Hare was an attorney, and
that when plaintiff Talk and defendant
Austin We're adjusting the settlement
of damages, he, Talk, consulted Hare
for legal advice on the subject; that
Hare advised him that his only re-
course was upon Nash & Co., the ship
pers at Port Lavaca, and that he had
better execute the receipt for his
freight money to Austin and settle
with him for the damages, and that
then he, Talk, could go OH Nash u Co.
for the freight money and for the dam.
ages so settled with Austin; and that
Hare thereupon wrote out the state
ment signed by himself, Austin and
others. That this advice and these
representations made by Hare, as also
by Austin, were fraudulent and false,
and that plaintiff was induced 10y them
to execute the receipt to Austin for the
freight money; that at that very time
Hare was secret partner of Austin to
the extent of one-third interest, and
was thus liable to plaintiff for the
freight money, which fact he fraudu-
lently concealed from the plaintiff
when he induced him execute the re-
ceipt to Austin.
Hare adopted as his answers those
already filed by his co-defendant Aus
tin.
The fourth instruction given to the
jury, commented upon in the opinion,
is as follows: Grand is not to be pre-
sumed, but must be proved; but if the
jury believe from the evidence that
Talk, being in doubt and uncertainty
as to what lie should do, applied to de-
tendant Hare as an attorney at law for
advice, and that said Hare acted as his
attorney, counseled with him, and did
not disclose to Talk that he was Aus
tins copartner and interested in the
goods, this would be fraud upon the
part of Hare, and would release Talk
from his settlement made with Austin
under the advice of Hare; and the
court charges that if the jury believe
from the evidence such to be the facts,
they will find for Talk the amount due
HIM with interest at per cent since
they shall further believe that the
goods were damaged before Talk re-
ceipted for them to +. Nash d Go. at
Port Lavaca."
1t was admitted by defendants that
at the time of the delivery of the
goods, Hare was Il practising attorney
at law in Bolton, keeping his office
near Austin's store, and that he was
then also partner of Austin and liable
for one-third of the freight upon the
goods. 1t was further admitted that
Hare wrote the statement with regard
to the condition of the goods, signed
by himself, Austin and Others, and
gave the statement to Talk to show to
Z. Nash Il Co.
Verdict and Judgment in favor of the
plaintiff for S242 81. Motion for a new
trial overruled, aud defendants appeal.
II. Walker, for appellant
Thomas p. Hughes, and Hancock q
West, for appellees, cited LIST Texas r.,
1928; LIST Story's Eq., u 2lS, 2l9, 523,
and note.
Wheeler, G.. j. Since this case was
before US on a former appeal go Texas
r., l64), the plaintiff has amended his
petition, making u new party and
charging specifically and sufficiently
the facts constituting the alleged fraud
i'm procuring the settlementand receipt
for freight, which the plaintiff seeks
to avoid In order to enable him to re-
cover In this action.
The fact that there have been seve-
raj concurring verdicts, should think,
strongly incline this court against dis
turbing the present, If 1t is to be re-
garded as a finding of the jury upon
the evidence, uninfiuencod and I'M
biased by the instructions given by the
court. Upon question of positive
fraud, the court will be very slow to
disturb the verdict of jury where the
evidence discloses suspicious circum-
stances of a character to induce the be-
lief that any artifice, cOncealment or