The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-05-03
The Supreme Court.
SYNOPSIS OF OPINIONS RENDERED.
TReported by j. j. Lane.l

TReported by j. j. Lane.l
Warner VS.. Carson ct al; from
Parker county.-Question of RECESSION
of contract. AS general rule mis-
representations of values of property
or the solvency of third parties being
mere matters of opinion, afford no re-
lief from deception; but the particu-
lar circumstances of the case deter
mine in a great measure whether or
not contract is to. be enforced, or
avoided for fraud, which is so multi
form and undefinable under general
rules that equity is required to re-
dress its wrongs. An act which
would be binding between parties of
mature age and ordinary mental ca
pacity between whom there were no
special relations of trust and
confidence, would be impressed
with Il fraudulent character if the
suffering parties were under duress
or an infant or imbecile, or if there
were relations of trust and confidence
between the contracting parties.
Free and full consent is necessary.
Where the faculties of one party are
in any way impaired, the law requires
greater fairness in dealing, ana less
proof of deception or oppression than
in ordinary cases will suffice to set
aside the contract. The state of the
mind must be taken in connection
with the other facts of the transaction
to determine whether or not the con-
tract may be avoided. Temporary
suspension of the faculties from
causes of fear or overwhelming
grief requires the strictest good
faith in representations made
to a party so affected, especially
when the latter. not being in proper
condition to make an agreement con-
fides implicitly in the statements of
the opposing party. Inadequacy of
consideration may be of so gross a
nature as to amount to such
evidence as will avoid contract
between such parties, as for instance
where the price IS SO inadequate as to
shock the sense of justice in any cor
rect thinking mind. Plaintiff set
forth good cause for resembling her
contract and should have been al
lowed to go with her proof before a
jury. Judgement reversed and case
remanded.-Willie, G. J.
j. ID. McCamant ct al VS.. G. w.
Batsell; from Tarrant county.-Ques-
ton of account. Held, That the court
did not err in sustaining. the excep-
ton to so much of defendants answer
as to set up that the note and other
indebtedness which the appellee
(BatselD claimed to have paid as
surety for the defendant (McCamant)
was based upon gambling transac-
ton" by the defendant in cotton
futures. The answer in this respect
does not show what the real transac-
ton was. Plaintiffs alleged payments
for McCamant as his surety were
stated in the form of open account.
To authorize proof of indebted
the affidavit Of the plaintiff
the action must be upon an open ac-
count, which is defined to be one in
which nothing has occurred to bind
either party by its statements and
which is open to question. If this be
correct the matter sued on cannot be
open account, for the liability of the
defendant, if he be the principal
debtor and the plaintiff only his secu-
rity, is upon payment of the debt by
the surety absolutely fixed as to the
amount of the debt and liability of
the defendant to pay it. In the case
in question the debt sued upon is not
an account" or "open account" with
in the meaning of article 1856 revised
statutes, which plaintiff may eStab-
lish by his eXparte affidavit, such as a
defendant will be compelled to deny
in whole or in part under oath before
he will be permitted to introduce evil
dence to disprove prima facie case,
which the statute contemplates may
be made by the affidavit. Judgment
reversed and cause remanded.-
ton, A. j.
Houston and Texas Central railway
VS.. Edward Richards. Damages for
breaking arm and leg of plaintiff.
Verdict of jury for $1,000 for plaintiff
set aside and cause remanded, on the
ground that plaintiff, who had been a
section hand on the road and was
familiar with its operations, contrib
uted to the results by his own negli-
gence in walking upon the railroad
track on a dark rainy night with a
strong wind blowing in his face, and
travelling between stations, knowing
that an express train was coming be-
hind him and might run upon him at
any moment. Commissioners report
adopted.
Henderson VS.. Jones: from Tarrant.
Report adopted. Judgment for ap-
pellant.
Clayton VS.. Benedict; from Parker.
Judgment reversed Stayton, A. j.
Huff VS.. Clark; from Wilson. Re-
versed and remanded.
Romelie VS.. Leep r; from Collin.
Reversed add remanded.
Texas and Pacific railway company
VS.. A. T. McAllister; from Harrison
county. Judgment affirmed Willie,
&. j.
John Vaudegriff VS.. j. E. Piercy
from Parker county; loss Of deed
Held, That declarations merely, as to
loss of the person in whose custody
the document was at the time, will
1 NOT do s1Ich custodian muat he nro-