Flack v. Neill
Texas Supreme Court
Appeal from Guadalupe. Tried below before the Hon. A. W. Terrell. Suit was commenced by E. P. Flack, on a promissory note for $416 50, executed to him by the appellee, dated tbe 12tb of February, 1858, and payable on tbe 1st of January, 1854. Tbe plaintiff died, and tbe suit was subsequently prosecuted by tbe appellant, as bis administrator.
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Appeal from Guadalupe. Tried below before the Hon. A. W. Terrell. Suit was commenced by E. P. Flack, on a promissory note for $416 50, executed to him by the appellee, dated tbe 12tb of February, 1858, and payable on tbe 1st of January, 1854. Tbe plaintiff died, and tbe suit was subsequently prosecuted by tbe appellant, as bis administrator. Tbe appellee set up as a defence, that in tbe year 1845, be became tbe administrator de bonis non, upon tbe estate of Charles S. Smith, who was killed in'^tbe Alamo, in 1836. That there being no assets of tbe said estate, which be could get into…
1Opinion of the CourtBell, J.
There was error in the charge of the court.
The right of a party to recover reasonable attorneys’ fees, as special damages, in cases of fraud, is confined to cases where a party is obliged to take the initiative, in order to redress a wrong perpetrated through fraud or malice. Where a plaintiff has an apparently good cause of action, arising ex contractu, and the defendant sets up fraud, as a defence, he cannot recover special damages.
In the case of Bracken v. Neill, 15 Tex. Rep. 109, the District Court allowed the plaintiff, Neill, to recover special damages, on the ground that the defendant,…
2Cases cited1 opinion
- Bracken v. NeillTexas Supreme Court · 1855
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- Employers' Casualty Co. v. PontonCourt of Appeals of Texas · 1931
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