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: 296
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295 COOK v. WOOTTERS. [Term of
Opinion of the Court.
sideration, of the note before its maturity, or after it became due,
without notice of any claim upon it as the property o' another,
other than the person trading the note, and directing tlhe jury,
in either case, to find for the defendants. This charge was
erroneous, inasmuch as it made the naked fact of a purchase
of the note before it fell due a valid purchase, independent of
any notice or information which defendants might have, of
plaintiff's claim to control and collect it as the surviving partner.
The plaintiff was, however, satisfied with the charge as
given, until the jury returned a verdict for the defendant. No
exception was taken, no counter-instruction asked on behalf
of appellant. It need scarcely be remarked, that a charge, in
itself erroneous, will not, in a civil cause, be sufficient ground
for a reversal, when no exception is taken or counter-clharge
asked, unless it clearly appear that the jury was misled by
the charge given and complained of. (Mercer v. Hall, 2 Texas,
285; tlassell v. Nutt, 14 Texas, 266; oI-llingsworth v.
Holshousen, 17 Texas, 47; Hubby v. Stokes, 22 Texas, 217;
Vaughan v. The State, 21 Texas, 752; Thatcher . Mills, 14
We are of opinion that the charge given in the case did not
injuriously affect the rights of plaintiff. The only witness
for plaintiff was himself; he states, after the claim of Mrs.
Long to one-half of the draft on Galveston, about the middle of
January, 1867, he went immediately to Wootters, who was at
that time a creditor of the former partnership of Long and
plaintiff, and told him that his agreement to settle the debts
he should not consider binding, as the other side was not coinplying
with the contract, and directed him to a point on the
river where he could find some cotton belonging to the concern;
plaintiff stated that defendant Wootters was, witness
thinks, present when the settlement with Mrs. Long was being
made, and knew of the whole matter as one of the creditors;
that witness had refused to pay more than one-half the indebtedness,
but had paid out about one thousand two hundred
dollars more than the assets that had come to his hands. This
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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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/304/: accessed October 19, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .