Fulton v. Craddock, 1 Dallam 458

BAYLOR, Justice. Craddock, the plaintiff in the court below, brought this action against Fulton, as the surviving partner of the firm of Cravens & Fulton, to recover the value of a quantity of corn which he charges in his petition was fraudulently obtained by the firm of Cravens & Fulton from one Tomlinson, by collusion with him whilst acting as Craddock’s agent to sell the corn.

The fraud alleged is that Tomlinson was individually indebted to the firm of Cravens & Fulton, and for the purpose of securing the payment of their debt, they purchased, contrary to law and good conscience, the corn of Tomlinson, knowing it to be the property of the plaintiff Craddock. This cause was reversed at the last term of the court on an appeal taken from the District Court of Red River County, mainly on the ground that the facts upon the record did not in our opinion justify the jury in finding a verdict for the plaintiff below.

It is again brought here by Fulton, as the surviving partner of the firm, in order to reverse the case and set aside a second verdict in favor of Craddock. Upon an inspection of the record and looking into the testimony, we find the proof, although contradictory, to be somewhat stronger in support of Craddock’s right to recover; under such circumstances the court will presume (especially after several verdicts) that the jury, who are the proper triers of the facts, have found correctly; we can not therefore disturb the verdict.

This is required by the genius and spirit of our laws; if it were otherwise, courts might render juries useless, and usurp the power of ascertaining facts which according to the principles of the Constitution belong to juries in a court of law. The bill of exceptions taken in the case presents two other questions for our determination: 1. Was the motion to continue the case properly overruled by the judge below? 2. Was the instruction asked for to the jury properly refused?

Upon the first point in looking into the affidavit for a continuance and examining the facts there set forth, we do not find such an abuse of the legal discretion given to the district judges to continue causes as to raise the question whether this court will interfere in such cases or not. Upon the second point the defendant’s counsel moved the court to instruct the jury, that as the plaintiff had not prayed for any specific relief in his petition, that he could not therefore recover ágainst the defendant.

The petition after stating the cause of action concludes, “to the damages of the plaintiff five hundred dollars, and therefore he brings his suit,” etc. This we deem in the present form of action quite sufficient. At all events the objection came too late after the cause had been submitted to the jury. The court therefore, in refusing the instruction asked for, decided correctly. The judgment must be affirmed. Affirmed.