4 FLANAGAN V. PEARSON. [Tyler Term,
Opinion of the court.
and fifty-four acres above mentioned, forming a tract of
3,129 acres, the third of league sold to Jourdan is to be
selected first from off one side or end of said tract, and
then said Pearson is and shall have the first choice to select
his 354 acres from either corner of the remaining tract of
1,653 acres in a square or oblong form." The consideration
was stated to be one hundred and fifty dollars.
The answer of Flanagan to this original petition consisted
of exceptions, a general denial, and pleas of liniitation
The charge of the, court was to the effect that if Flanagan
' had violated his duties or obligations to his principal
by positive misconduct, by selling and converting to
his own use, and as his own property, the portion of said
certificate which the said title bond was intended to secure
to plaintiff, you will find a verdict in favor of the plaintiff
for the damages sustained by him for such misconduct or
neglect of duty as such attorney and agent of plaintiff."
The jury brought in a verdict for plaintiff of $2,250.
On a motion for a new trial being made, Pearson was required
by the court to remit, and did remit, all except
$1,000, for which amount judgment was rendered, and
that judgment was, on appeal to this court, affirmed.
This statement of the pleadings and record shows that
the course of action set up in the petition in that case was
an alleged fraudulent breach of duty by Flanagan, as the
employed attorney of Pearson, in converting to his own use
the bond intrusted to him as such attorney. The judgment
is a debt founded on this breach of duty in his fiduciary
capacity as an attorney. For the purposes of this case the
record is conclusive evidence that the debt evidenced by
said judgment was created whilst Flanagan was acting in
the character of an attorney by his misconduct as such.
In the view which we take of it, it is not material to determine
whether the record establishes a debt created by
fraud or embezzlement within the meaning of the bank
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed November 23, 2014.