Hammond v. Hough

Gould, Associate Justice. The first assignment of error is to the admission in evidence of the power of attorney by Steele to Livermore of October 4, 1838. As another power of attorney, of date February 25,1839, was admitted, and was ample to authorize the deed to Bailey if the Livermore who executed said deed and the Livermore named in the latter power of attorney were the same person, and as that question was submitted to the jury and must have been found in the affirmative, we are unable to see that it is material to inquire whether the first power of attorney was properly admitted or not. Moreover, the facts developed in the case indicate so satisfactorily that the A. H. Livermore making the deed and the Amos H. Livermore receiving the irrevocable power of attor [71] nev are the same person, being the Livermore whose estate was in 1840 administered in Louisiana and who received a title bond from Bailey, that we would not be justified in reversing the ease for the erroneous admission of further or cumulative evidence of authority to make that deed. The defendants having themselves read in evidence a part of the transcript of the proceedings of the Second District Court of the parish of Orleans in the succession of A. H. Livermore, objected to the admission of a further transcript of those proceedings, on the ground that the evidence was irrelevant, secondary, and hearsay, and calculated to prejudice and mislead the jury. As explaining more fully the parts of the same proceedings already adduced in evidence by defendants, as primary evidence of the fact that Livermore’s representative publicly claimed the lands at that time, and as showing how readily Steele might have ascertained the fact, if, being ignorant of what had been done, he sought some account of Livermore’s proceedings under the power of attorney from him or his representative, we cannot say that the evidence was secondary, hearsay, or inadmissible. The seventh assignment of error objects to that part of the charge which denied the right of Steele, his heirs or their vendees, to set aside the conveyance to Bailey, if it was made in accordance with an agreement between Steele and Livermore in payment of an indebtedness, and the form of a power of attorney was resorted to because he was an alien—the objection being that this issue was not raised by the pleadings or evidence. Certainly, if such was the object of the transaction, the charge of fraud in making the deed to Bailey was unfounded. Whilst the power of attorney, although irrevocable, does not purport to be a sale, the subsequent action — or, rather, inaction—of Steele points so strongly to his abandonment of all claim to either the land or its proceeds, that we cannot say there was no evidence authorizing the inference that the transaction was originally intended to be a sale. Hot [72] that such intention would make it a sale, but that it would be an answer to the charge of fraud, the main issue in the case. The charge of the court submitting the question of identity of the Livermore named in the different instruments, was, substantially, in compliance with the rule laid down by this court in a former appeal of this cause. (36 Tex., 657.) The interrogatories propounded to plaintiff Connolly by defendants naturally called forth an explanation tending to vindicate his honesty and motives in the entire transaction. The answers of the witness were objected to, in writing, because not closely connected with the facts on which he had been interrogated. Our opinion is, that, tested by the provisions of the District Court act of 1846, on the subject of discovery, (Paschal’s Dig., arts. 3748-3750,) the answers were objectionable. But since the enaettnent of the statute of 1871, (Paschal’s Dig., art. 6826,) making parties competent to testify in their own cases without reference to the wishes or action of the opposing parties, wre are of opinion that the failure of the court to exclude the testimony of a party, in itself competent, because not strictly connected with the interrogatories propounded to him, would not be error, or, at least, not such error as would lead to a reversal. But it appears in the statement of facts that these answers w’ere objected to orally as “irrelevant and wholly incompetent,” and appellants submit a proposition that they “w'ere not competent evidence, and calculated to prejudice the minds of the jury.” We have had some doubt whether the question of the competency of these answers as evidence generally, as being statements of the understanding or belief of the witness, appeared from the record with sufficient certainty to have been made and reserved below, to entitle appellants, on that ground, to the benefit of it in this court. There is no bill of exceptions other than the recitals in the statement of facts above set forth, but we have finally concluded that the oral objections, in connection with the objections in writing, must have called the attention of the court below to the point now sub [73] mitted in appellants’ proposition, and that at all events they are entitled to have it considered. We are strengthened in this conclusion by an examination of the counter-propositions in the brief of appellees, which simply assert the admissibility of the depositions. A part of Connolly’s answers objected to is as follows: . “At the purchase of said bond by me, I understood that the lands described in said bond had been acquired by Amos H. Livermore from James S. Steele; and I further understood that the said Steele had become indebted to said Livermore for merchandise at the city of Hew Orleans, in which said city said Livermore was a merchant, and said Steele, being unable to liquidate said indebtedness otherwise, turned over the said lands described in said bond to said Livermore as aforesaid; and I also understood that the lauds described in said bond belonged to said Livermore, in perfect good faith, and that the titles were put in Bailey merely because Livermore, being at the time an alien to Texas, could not hold laud in Texas.” We think this evidence of what the witness understood as to the nature of the transactions between Steele, Livermore, and Bailey, was inadmissible, and should have been excluded. The jury may"have been misled by this evidence. One of the inquiries submitted to them, was whether the parties to the irrevocable power of attorney intended a sale. Connolly was allowed to tell what he understood had been their intention. How he understood the matters testified to, did not appear; and the fact that he so understood them, was not, of itself, admissible evidence. Our opinion is, that because of this error in the failure to exclude improper evidence, which may have misled the jury, the judgment must be reversed and the cause remanded. Reversed and remanded. [This case was decided at Austin Term, 1879, but did not reach the reporters in time for 51 Texas.]