Thomas Price and another v. Elanor Price, 22 Tex. 334

Wheeler, Ch. J. The allegation, on which the recovery is based, is, that the defendant, Price, had in his possession, or under his control, at the time of rendering the inventory, on the 3d of November, 1857, fifteen thousand dollars in money, of which he failed to render an account.

This allegation is sought to be supported, by evidence that the defendant was known to have had, on hand, certain sums of money, (not very considerable in amount at any one time, nor in the aggregate amounting to anything like the sum with which he is sought to be charged,) at different periods, extending back to the year 1850, and before his removal from Alabama to this State; and the further evidence of the number of hands he worked, that he was a good farmer, cultivated good land, made good crops, was prudent, economical, and not addicted to the spending of money, and what one of his neighbors, a witness, had made clear of expenses from his farm during the last two years: And upon evidence of this uncertain and indeterminate character, the jury returned a verdict for the plaintiff, for the sum of $3,067 66, thereby charging the defendant with having actually had on hand, three times that sum, on the 3d of November, 1857, without evidence that the defendant actually had any money on hand at that time, or within any short time before.

If a party is to be charged upon such evidence alone, it is not improbable that many farmers, who, like this defendant, have bought and improved wild lands in this country, might be charged, after the lapse of a few years, with having on hand large sums of money, when, if called on, they would testify that they had found it difficult to commaud actual cash enough to defray current expenses, and avoid going in debt.

Possibly, some of the jurors, who tried this case, if they are farmers, would not be willing to be required to account for money on hand, to be ascertained by such a rule of computation as must have been adopted to arrive at their verdict in this case. The witness, on whose testimony the jury must have mainly relied, who, with fewer hands than the defendant worked, had made from his farm, clear of expenses, fifteen hundred dollars a year, for the last two years, was not asked, it seems, whether he had the three thousand dollars in cash on hand.

His answer, to such a question, might have suggested a doubt of the accuracy of this mode of arriving at the amount of money, which the defendant had on hand on the 3d of November. It is unnecessary to comment upon the evidence. If it were sufficient to warrant a verdict for $3,000, it is not perceived why it might not, just as well, have warranted a verdict for five or ten thousand, or any other amount within the range of probability, or even possibility, or conjecture. It manifestly was too uncertain and indeterminate, to warrant a verdict for any amount.

The defendant was not required to render an account of the net proceeds of his farm, since he had resided in this State, but of the actual cash on hand, at the time of rendering the inventory. The question for the jury was, not what he might have made, or what his neighbors might suppose he ought to have made, and to have, but what he actually had in money at that time. Upon that question, the finding of the jury must have been wholly suppositious and conjectural; it manifestly was not warranted by any certain or sufficient evidence; and the court erred in refusing to grant a new trial.

The plaintiff has so plainly failed to make out her case, upon the evidence, that it is not deemed necessary to consider any other question presented by the record. The judgment is reversed, and the cause remanded. Reversed and remanded.