Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61. Page: 80
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80 CCAIULEY V. Logo & Co. [Galv. Term,
Opinion of the court.
petent for them, however, to prove his engagement in these other
pursuits in order to show to the jury, in connection with other evidence,
that appellant had broken the contract or had abandoned it
altogether.
The court, it appears, over the objection of appellant, permitted
the witness Fletcher, who was a party to the suit and one of the
original parties to the written contract out of which this action
grew, to detail in evidence before the jury certain verbal statements
in reference to the subject matter of the contract, alleged to have
been made by appellant to the witness before the contract was executed.
These statements, as detailed by Fletcher, were to the effect
that the appellant had represented to him that he could run or raft
logs at any and all stages of water.
It appears, however, that at some subsequent stage of the trial,
after all the evidence was introduced, that this testimony was in
some manner withdrawn or attempted to be withdrawn by the court
from the consideration of the jury,
How, and in what manner, or at what time, after its introduction
this was done, does not certainly and distinctly appear from the record.
The bill of exceptions which was signed by the judge on the
subject may mean that he withdrew it from the jury, by his partial
silence with reference to this branch of the subject in his charge to
the jury.
It may also be inferred that it was possibly withdrawn by the
judge orally from the consideration of the jury as soon as all the
testimony had been introduced. Or it may be, and this from the record
appears most probable, that it was not in any manner withdrawn
from the consideration of the jury until the arguments of counsel
on both sides had been heard.
There are also some expressions in the main charge of the court
that may possibly have been intended to distract the attention of
the jury from this improper evidence. They are there told, more
than once,, that they must look alone to the terms of the contract,
and like words are used.
Be this as it may,. we are of the opinion that the court erred in
permitting this evidence to go to the jury in any aspect of the case
as disclosed by the record now before us. The rights of appellant
could not but have been seriously prejudiced in the eyes of the jury
by the admission of this illegal evidence in relation to a matter so
important, and which sought to attach, by parol evidence, new and
important conditions to the original written contract.
The practice of permitting illegal or irrelevant evidence, when
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61., book, 1903; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28513/m1/96/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .