C. P. Shattuck v. H. N. McCartney et al., 1 White & W. 280

Opinion by Winkler, J. § 557. Estoppel in pais. Generally, when one seeks to bind another by estoppel in pais, the law requires that the party should have acted upon a knowledge of the facts, and that his actions influenced the other party to act as he did [Scoby v. Sweatt, 28 Tex. 713], and must operate mutually between the parties. [Lewis v. Castleman, 27 Tex. 407.] If the representations were made,, whether with a full knowledge of the facts or not, he is estopped from denying the truth of the representations, unless he show fraud in obtaining the representations by the other party. [Johnson v.

Hamilton, 36 Tex. 270; Watson v. Hewitt, 45 Tex. 472.] As to what a party pleading an estoppel in pais may prove, see Page v. Arnim, 29 Tex. 53; and as to measure of damages, see Warren v. Ashcroft, 50 Tex. 427. § 558. Charge of the court; preponderance of evidence. Where the court told the jury that whenever there arises a reasonable doubt as to the preponderance of evidence, then the defendant is entitled to the doubt, held error.

In civil cases the law is that, where there is a conflict in the testimony, the jury must decide in favor of the preponderance of the testimony, they being the judges of its weight and credibility; but the court can give them no aid when the jury are unable to determine whether there is a preponderance of evidence one way or the other. N Reversed and remanded.