A. Austin and another v. John Talk and another, 26 Tex. 127

Wheeler, C. J. Since this case was before us on a former appeal, (20 Tex. R., 164,) the plaintiff has amended his petition, making a nerv party and charging specifically and sufficiently the facts constituting the alleged fraud in procuring the settlement .¿¡and receipt for freight, which the plaintiff seeks to avoid in order to enable him to recover in this action.

The fact that there have been several concurring verdicts, should, I think, strongly incline this court against disturbing the present, if it is to be regarded as a finding of the jury upon the evidence, uninfluenced and unbiased by the instructions given by the court. Upon a question of positive fraud, the court will be very slow to disturb the verdict of a jury where the evidence discloses suspicious circumstances of a character to induce the belief that any artifice, concealment or misrepresentation, has been practiced, or that confidence reposed has been abused to the prejudice of the party complaining.

The relation of attorney and client, if shown to exist, would authorize the court and jury, in a case like the present, to scan the transaction between the parties with severe scrutiny. But especially where the question of fraud in fact rests upon circumstantial and inconclusive evidence, it is essential that the finding of the jury upon the evidence be wholly uninfluenced by anything contained in the charge of the court. And we cannot say that such has been the case in' this instance. We think the case more strongly put for the plaintiff than the evidence warranted, in the fourth instruction given by the court.

In the abstract, we do not doubt the correctness of the charge in point of law, nor' do we doubt its correctness upon the state of facts supposed by the charge; but we think the charge calculated to induce the jury too readily to adopt the conclusions of facts supposed, without sufficiently considering whether there was evidence to warrant the adoption of all those conclusions. We think there is reason to apprehend that the jury may have been misled by this charge.

There is reason to believe the finding of the jury was induced by their opinion of the agency of the new party upon the record in bringing about the settlement sought to be avoided. The evidence upon that point was certainly very inconclusive. This, it is to be observed, is the first verdict since the new party was made; and in view of the character of the evidence, and the charge of the court upon it, we incline to think a new trial ought to have been granted.

To support a recovery by the plaintiff in this case, he ought to, satisfy the jury by competent evidence that the goods were damaged before they came into his possession; and that when he made the settlement and gave the receipt for freight, he acted in ignorance or under a mistake of fact; or that he was induced or influenced thereto by some imposition practiced upon him by one or both of the defendants; that some artifice was used, or there was some misrepresentation, concealment, or suppression of some fact which it was material for the plaintiff to knowj a knowledge of which might have caused him to act differently.

We are of opinion that the judgment he reversed, and the cause remanded for a new trial. Reversed and remanded.