majority">Watts, J. Com. App.

Appellee’s case, as made by the petition, is. that Altgelt was his agent and attorney, and in that capacity controlled large sums of money belonging to appellee. That on the *43516th day of June, 1876, Altgelt, after having been duly informed by appellee that he would pay $1,600, and no more, for a certain house and lots situated on North street, in the city of San Antonio, then belonging to D. Y. Portis,— Altgelt, without the knowledge or consent of appellee, and for the purpose of defrauding him, purchased from Portis the house and lots, and procured the same to be conveyed to appellee through F. E. Grothaus, and charged appellee with the sum of $2,800 therefor; charging that the fraud was concealed from him, and that the property was only worth $1,600 at that time.

The evidence showed that Portis & Altgelt were partners in the practice of the law and had been for several years; that appellee and Portis were old friends, and had known each other for a longtime, and that appellee was then unacquainted with Altgelt; that he entrusted large sums of money to Portis to be loaned at interest, and that Portis had used §2,800 of this money; that all the property Portis then owned was the house and two lots on North street; that Altgelt had in connection with Portis taken charge and management of the business of appellee, that is, to the extent of loaning appellee’s money. Just prior to June 16, 1876, Portis & Altgelt dissolved their copartnership, but still continued to manage appellee’s business in conjunction.

Altgelt procured the conveyance to the North street property to be made from Portis to Grothaus, and from Grothaus to appellee, in payment of the §2,800, the amount of appellee’s money that had been used by Portis. The record is silent as to whether Altgelt, in any way, had any connection with the appellee’s money prior to the time Portis had used for his own purposes the $2,800. Upon this state of case the court charged the jury as follows:

“You are instructed that if you believe, from the evidence, that Ernest Altgelt was the attorney and agent of plaintiff in June, 1876, and as such purchased for Daniel Brister, or caused to be purchased, the house and lots on North street, without the knowledge or consent of said Brister, and paid therefor out of Brister’s money in his hands, then you are instructed that Brister could not be charged beyond a reasonable price therefor. And if you believe, from the evidence, that the property in question, upon the date of its transfer to Brister, was not reasonably worth more than §2,000, while it was charged to Brister at §2,800, then you are instructed that the plaintiff is entitled to recover the difference between the actual value of the property and the price paid for him.”

That charge is objectionable, for that the evidence clearly and *436unmistakably shows that Altgelt did not purchase the property and pay for it out of appellee’s money, which was in his hands as agent and attorney; but that he took it from Portis for appellee in payment of the §2,800 which Portis had used of the money of appellee. In other words, the court by the charge submits to the jury an issue not made by the evidence—an issue to which there was no evidence adduced.

The facts and circumstances might exist that would have rendered Altgelt jointly liable for the $2,800 used by Portis, and in that event, if he accepted the house and lots for appellee in payment of that sum, without the knowledge or consent of appellee, when in fact the actual value of the property was less than that amount, then Altgelt might be liable to appellee for the difference. But if Altgelt ivas not jointly liable with Portis for the amount of money used by the latter, and Portis was insolvent, and had no other means out of which to pay appellee except the lots and house on North street, which was then the homestead of Portis, we are unable to perceive, in the light of the evidence disclosed by the record, how the appellee was injured by the action of Altgelt in this particular. If it had been made to appear that Portis had since that time accumulated effects out of which the debt could have been made, then, perhaps, Altgelt might have become liable, as’he had accepted the conveyance of the property in satisfaction of the claim.

However this might be, it is certain that Altgelt did not purchase this property and pay for it with the money of appellee then in his hands. And in submitting that issue the court went outside of the case as made by the evidence, and made the controlling issue in the case one to which there had been no evidence adduced.

This charge is also objectionable, in view of the evidence found in the record, in that the court thereby impliedly assumes that the true value of the property at the time of the conveyance was not more than $2,000. At least from the language in -which the latter portion of this charge is couched, the jury might have assumed that the opinion of the court was that the real value of the property was $2,000. Andrews v. Marshall, 26 Tex., 215.

Our statute provides that, “ In actions by or against executors, administrators or guardians, in' which judgment may be rendered for .or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party,” etc. R. S., art. 2248.

*437la this case appellee was by the court permitted to testify, over the objections of appellant, that Altgelt & Portis had charge of his business, and that he had entrusted to them his money to be loaned on security, etc.

Certainly the entrusting money with the deceased to have it loaned by him on security, constituted a transaction with the deceased, within the meaning of the above-quoted article. The rule is axiomatic, that where there has been a full, final and complete settlement had between parties as to particular matters, that such settlement is conclusive unless it be shown that it resulted from fraud, inadvertence or mistake. And the rule is the same whether the settlement be made by the parties in person or through their lawfully authorized agents. If, as claimed, there was a final settlement of this matter had between Altgelt for himself, and Portis and Robinson as the agents of appellee, duly authorized to act for him in that matter, then such settlement would conclude appellee unless he should aver and prove to the satisfaction of the jury that it was the result of fraud, inadvertence or mistake; otherwise the settlement could not be reopened, and the matters therein determined again adjusted.

We conclude that the court erred in the particulars indicated, and that the judgment ought to be reversed and the cause remanded.

Reversed and remanded.

[Transferred to Tyler, and opinion rendered October 30, 1882.]

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