Byrd R. Rogers v. Robert Broadnax, 24 Tex. 538

Roberts, J. The suit is founded on two notes under seal, dated 13th of December, 1854, payable 1st January, 1856, to Means, and by him immediately assigned to Wooten and Clark, and by them, after maturity, assigned to Rogers.

In one aspect, Broadnax’s answer presents a good defence to these notes, and therefore the court did not err in overruling the exceptions to it; that is, that Means had in 1853, sold him the tract of land, and they had entered into a written agreement, stipulating that none of the purchase-money, except $6300, should be paid by Broadnax, until Means should have the title of Quarles, for one-sixth interest in the land, cancelled and discharged ; that these notes were given for such balance of the purchase-money, in pursuance of, and in subserviency to the conditions and limitations of said agreement, and that it was so understood by Means and Marshall, agents of Wooten and Clark, who acted for them in receiving the assignment of the notes from Means; and that the said title of Quarles, had not been can-celled, discharged, or otherwise extinguished.

The court in the instructions to the jury assumed, hot only that this was a good defence as pleaded, but that it was conclusively established by the proof. The charge is as follows: “ In this case I charge you, that you should find for the defendant.” Had these notes been executed at the same time the agreement was executed, on the 2d of April, 1853, and had they been in exact accordance with the terms of the said agreement, and had these facts, together with the one, that the Quarles title had not been extinguished, been admitted, then such a charge as this might have been justified.

But the notes were given on the 13th of December, 1854, and were payable at different times, and in different amounts, from those stipulated in the agreement of the 2d of April, 1853 ; and primá facie, they were the result of some new arrangement concerning the payment for the land, or had relation to some other transaction.

The burden of showing that these notes did not relate to some other transaction, and that they contemplated no new arrangement about the land, and that they were understood by the parties to be given in pursuance of, and in subserviency to, the limitations and restrictions of the agreement of 2d of April, 1853, rested on Broadnax; and to establish this, he was compelled to resort to other evidence, than that which the face of the notes imports, so as to explain the circumstances and understanding under which they were given.

The court, by the charge, determines these facts in favor of Broadnax, as conclusively established. They should have been submitted to the jury for their determination. Hor are we ^satisfied that the evidence was such as would have required the jury to come to the same conclusion, had the issue been submitted to them. Such a charge as this can never be sustained, when there is any question of fact, which should be submitted to the jury.

The statute prescribes, that “ the judge may deliver a charge to them, (the jury,) on the law of the case, under the following restrictions, viz; He shall not in any case, civil or criminal, charge or comment on the weight of evidence. He shall so frame his charge, as to submit questions of fact solely to the decision of the jury, deciding on, and instructing them, as to the law arising on the facts ; distinctly separating questions of law from questions of fact,” &s. (O. & W.

Dig. 128, Art. 491.) • Here, Broadnax gave two notes under seal, obligating himself unconditionally, to pay to Means particular amounts of money, at a particular time. The time has elapsed. Primá fade, he is bound to pay. He alleges the existence of certain extraneous facts, which he contends, relieves him from that obligation. The facts are disputed by plaintiff.

Whether or not the facts alleged are sufficient to relieve him from the obligation to pay, as he agreed, on the face of the notes, is a question of law, to be determined by the court; but whether or not those facts, thus alleged and denied, exist, is a question of fact, for the jury to determine. The court in this case, virtually determined both the questions—of fact, and of law—without separating them, and without submitting the questions of fact to the decision of the jury. We are of opinion, that there was error in giving this charge.

Whether the answer presents a defence in any other aspect, and whether the court erred in ruling upon the admission and rejection of testimony, it may not be important now to discuss, as upon a new trial, the parties may change the state of the pleadings, and present the matters in controversy more definitely, and present their evidence with reference to such definite issues. Judgment reversed and cause remanded. Reversed and remanded.