Fulgham v. Bendy

23 Tex. 64

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Roberts, J.

This is a'suit upon a note given by the appellant to De Yeuve, which is alleged to have been transferred, for a valuable consideration, to Bendy. The defence is, that it was given in the purchase of a tract of land, and that the appellant was induced to give it by the false and fraudulent represéntations of De Yeuve, that he had full authority, as the agent and attorney of Cook and Curtis, to sell the said land, by which the appellant was deceived and defrauded. And that Bendy had notice, &c.

A bill of exceptions shows that the appellant, having given Bendy notice to produce the power of attorney given by Cook and Curtis to De Yeuve, offered to prove its contents, by the testimony of a witness; and that said testimony was objected to and excluded by the court. It does not appear, that Bendy was shown to have been in possession of the said power of attorney, or that any other foundation was laid for the introduction of this secondary evidence.

An objection is also made to the charge of the court, which directed the jury to find for the appellee, if they believed from the evidence, that Bendy became the owner of the note before its maturity, without notice of any outstanding equities, unless the defendant had proved the allegations in his answer. Charges were also asked by the appellant and refused, in reference to what would constitute notice to Bendy; and in relation to the effect of a want of authority of, or fraud committed by, De Veuve.

There is no statement of facts in the case, by which it can be determined, whether these charges, as given, and as refused, were pertinent, or were mere abstractions. (McMullin v. Kelso, 4 Texas Rep. 235.) Without such statement, it cannot be seen how far the case was affected by excluding the secondary evidence as to the power of attorney, even had there been error in its exclusion. (Hutchins v. Wade, 20 Texas Rep. 7.)

Parties wishing to have the errors of the court revised, in giving or refusing charges, and in admitting or rejecting evidence, should prepare and send up a statement of facts, as it has been repeatedly decided. It will seldom happen that a case can be presented, in which such errors can be revised, without a statement of facts showing the relevancy and importance of the matter sought to be revised. (See Galbreath v. Templeton, 20 Texas Rep. 47.)

Judgment affirmed.