60 CASTLEMAN V. SHERRY. [Tyler Term,
Argument for the appellant.
and was to deliver, some cattle and hogs. At the time of
the contract Sherry put Goodman in possession of the land
and delivered the cattle and hogs. He received no bill of
sale to the negro woman, and she was in his possession at
The testimony as to the terms of the contract was the
declarations of Sherry at the time of its execution and
The defense was the statute of frauds and absence of valuable
consideration. There was testimony by Sherry to a
new contract rescinding the parol, but this was not pleaded.
The court instructed the jury that the plaintiff, Castleman,
1st. That he had a good title and a right to sell the negro
woman alleged to have been the consideration for the
2d. That he made and delivered a bill of sale to said negro
woman, or offered to do so by way of proffer or tender.
3d. That he went into possession of said tract of land
and made valuable improvements thereon. * * * *
Evidence to establish a fact by the admission or confession
of a party, should always be scrutinized and received
by the jury with caution, as it is regarded in the eye of the
law the most dangerous that can be admitted in a court of
justice, and the most liable to abuse.
Verdict and judgment for defendant. Motion for new
trial overruled. Appeal by plaintiff.
J. IH. Clark and W. E. Wootlen, for appellant, cited Dugan
v. Colville, 8 Tex., 126; Hunt v. Turner, 9 Tex., 385;
Whitson v. Smith, 15 Tex., 36; Taylor v. Ashley, 15 Tex.,
52; Neatherly v. Ripley, 21 Tex., 435; Ottenhouse v. Burleson,
11 Tex., 87; Burleson v. Burleson, 11 Tex., 2; 2
Story Eq. 761, et seq.; 4 Kent, 451; Garner v. Stubblefield,
5 Tex., 559; Reynoldsv. Johnston, 13 Tex., 215; MeKinney
v. Fort, 10 Tex., 233.
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 1, 2014.