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. Page: 151

1875.] ROBERTSON V. MARSH. 151
Opinion of the court.
James H. Jones, for appellant.
Jones & Henry, for appellees.
MOORE, ASSOCIATE JUSTICE.-There can be no question
that the agreement between the parties, upon which appellant
paid appellees the two hundred and fifty dollars,
from which the matter now in controversy had its origin,
was contrary to public policy, and cannot be regarded as a
consideration to support an executory contract. Nor, indeed,
does appellant insist that the alleged promise of appellees
to repay the money which he paid them, as he says
in his evidence they promised to do, would entitle him to
enforce their undertaking. But he insists that the money
had been repaid him by a credit upon the account on which
this suit is brought; and in this way, as he maintains,
the account has been fully settled and discharged.
If appellees did, in fact, consummate the alleged agreement
to refund the money paid them on the original agreement
by giving credit for it upon the account, they can
no more cancel or withdraw the credit without his consent
than can appellant force them to give such credit if
it has not been done. The sole point at issue, therefore,
is whether there was such an agreement as alleged by ap
pellant; and if so, was it consummated and carried into
effect; or, rather, the practical question in this case is,
whether there is evidence in the record tending to show
that the credit had been given. If so, the charge asked
by appellant and refused by the court should have been
given. The only testimony bearing on the subject is that
of appellant; and as he purports to be cognizant of and to
testify with reference to all the facts upon which he relies
to show that the agreement to give the credit was consummated
and carried into effect, if the matters stated by him
did not show it with such reasonable certainty as to have
sustained a verdict in his favor, it cannot be said that the
court erred in refusing to give the charge asked by him..