majority">Roberts, J.

This is a suit to recover certain notes which were given in part payment of the purchase money of a tract of land, upon which was situated a steam mill. Plaintiff in error and his partner, Simpson, offered evidence tending to prove, in accordance with Ms plea, that the steam mill was the main inducement of the purchase, that Brown misrepresented the quality of the machinery, that the same was concealed from the view and inspection of the purchasers, that plaintiff and said Simpson relied on such representations' and were deceived thereby, and that by the defect of said machinery and by the time wasted, and expenses incurred in supplying *423its place, plaintiff and Simpson had been greatly damaged, &c.

That such facts, if established, would have constituted a good defence, pro tanto, cannot admit of a doubt. (Mitchell v. Zimmerman, 4 Tex. 79, and authorities therein cited.)

This evidence was excluded by the Court on the ground that 'Oondict and Simpson, defendants below, were notified to produce the deeds to the land executed by Brown to them, which they refused to do. The object of Brown in giving this notice was to establish the identity of the land as set out in his petition, in order to obtain a decree of sale on his vendor’s lien. This object was fully attained by the admission of defendants below, on the trial, as well as in their pleadings. The pleadings of the parties did not indicate any other necessity for the production of the deeds, nor did the evidence adduced or offered in the case show that there was anything in these deeds of a peculiar character requiring their production as the best evidence of the matter in issue. The matter in issue was the fraud of Brown in the sale, not committed in making a title, or in the stipulations of the deed, but in misrepresentations as to the quality of the thing sold, anything concerning which, was not pretended by either party to be stipulated in the deed. The issue presented was fraud outside of the deeds that had no necessary connection with them. Therefore it was error to require the deeds to be produced before parol evidence of the fraud in the sale could be given.

It is not perceived that that part of the plea, separately pleaded by Oondict, disclosing collusion between his former partner, Simpson, and the plaintiff below, Brown, might not be important to protect his separate interest. But as there was no evidence introduced or offered by either side on the subject, and the plea may be wholly immaterial, it is deemed unnecessary to examine further into this branch of the case. Judgment reversed and cause remanded.

Reversed and. remanded.

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