Keys & McKnight v. John Baldwin, 33 Tex. 666

Walker, J. This was an action brought by the plaintiff to recover one large ox wagon or its value. He alleges that he purchased the wagon on or about the thirteenth day of December, 1867, of one Coy, and that the defendants were wrongfully in possession of it. It appears that shortly after the alleged purchase Coy died, that the wagon remained in his possession until the time of his death, and after his decease his wife traded it to the defendants, Keys & McKnight. The jury found a verdict for the plaintiff in the snm of one hundred and twenty dollars.

The evidence is very conflicting and does not show that Baldwin ever purchased the wagon from Coy in his lifetime. And if the evidence of Mrs. Coy, as given in her answers to the fourth and fifth interrogatories propounded to her, and the evidence of Wade Hampton Clauneh had been permitted to go to the jury, then the verdict would certainly have been against the weight of evidence. We think the court erred in ruling out a portion of this evidence.

What Coy may have said to Clauneh about the wagon trade, in the absence of Baldwin, was not evidence; but what he knew, or professed to know of the transaction between Baldwin and Coy, aside from what Coy had said to him, was evidence, and should have gone to the jury. Mrs. Coy may have entertained some feeling that would have led her to support appellant’s title to the wagon, but she had not such an interest in the suit between these parties as to disqualify her as a witness. The evidence offered by the plaintiff below at best only proves a part payment for the wagon, oxen, sheet and chains.

It appears that there was a settlement pending between Baldwin and Coy j that Baldwin held notes against Coy. The plaintiff’s witness, Wm. Byram, says that Coy was owing plaintiff over two hundred dollars;. that Coy sold Baldwin the property for two hundred and forty dollars; that no money was paid, but that Baldwin delivered to Coy two notes, in part payment of the two hundred and forty dollars; that he did not see the face of the notes, and does not know what amount they were given for; that Baldwin took away the steers, chains and wagon sheet at the time, but left the wagon in Coy’s possession.

The evidence of this witness is that principally relied upon by the appellee, Baldwin, and it is contradicted—for it is very conclusively proven that after the death of Coy, Baldwin, in company with the sheriff, took the wagon, sheet and chains from the posses-' sion of the widow of Ooy. The evidence does not establish a sale and delivery of this property to Baldwin. The verdict of the jury was, then, contrary to law, and the court should have granted the defendants a new trial upon their motion. We think there was error in excluding the evidence of the witnesses, Mrs. Ooy and W. H. Claunch.

The judgment of the district court is reversed and thp cause remanded. Reversed and remanded.