Malloy v. Callahan

2 Posey 410

• Court: Texas Commission of Appeals
• Decided: July 1, 1882
• Docket: No. 4392
• Status: Published

Opinion

Opinion.— If either Brennan or Mooney were parties to this suit, the fact is not shown by the record.

The court did not err in answer to the question of the jury as to finding a verdict against them in favor of Mooney for any money paid by him on the lot. As they were not parties to the suit no verdict "could be returned against them, and the answer of the court was correct. As the case was presented there was no question raised as to the lot having been the separate property of Mrs. Mooney. Ho such claim is asserted by the pleadings. The property was presumptively the common property of Mooney and wife, and that Mooney under the law had the right to sell and convey it without being joined by the wife. However, throughout the charge the court treats Mrs. Mooney as a necessary party to the trade.

The jury are in effect informed that the sale and conveyance of the lot to Malloy must have been made by Mooney and wife, or their dulj7 authorized agent. But if the trade was made by Brennan without authority, then if Mooney and wife ratified and confirmed it, that would be sufficient. It is well settled that an erroneous instruction is not ground for reversal of the judgment, unless shown to have produced actual or possible injury to party complaining. See Loper v. Robinson, 54 Tex., 516, and authorities cited; also Carter v. Eames, 44 Tex., 548.

However, from an examination of the record, it does not appear but that the jury were misled to the injury of the appellant by reason of the errors in the instructions of the court. Judgment beveesed and oause bemanded.