This is the second appeal in this case, the former decision being reported in Hollis v. Finks, 34 Texas Civ. App. 12[34 Tex. Civ. App. 12], 8 Texas Ct. Rep., 680. At the last trial verdict and judgment were rendered for the plaintiff, and the defendants have appealed.
The verdict of the jury is assailed by the first assignment of error, the contention being that no sufficient proof of misrepresentations was made. As we reverse the case upon another ground we do not rule on this assignment.
Under the second assignment of error, it is contended that the plaintiff was not entitled to the equitable relief sought because he failed to tender to the defendants a reconveyance of the land for which the notes were executed, and still holds the defendants' warranty deed for the land. That question was not raised in the court below, and for that reason, it can not be urged on appeal. (Williams v. Wright, 20 Tex. 503; Moor v. Moor, 24 Texas Civ. App. 153[24 Tex. Civ. App. 153].) *Page 27
What has just been said concerning the second assignment, disposes of the third, which presents a similar question not raised in the trial court.
The point raised by the fourth assignment of error is decided against the appellants. In our opinion the contract of 1890 placed the burden upon the defendants to show that the land referred to was vacant and to establish that fact by a judgment in the suit then pending, whereupon the plaintiff would have the right, and would be required, to purchase the land at $7 per acre. The fact that the defendants thereafter procured a patent to the land should not be held to conclusively establish the existence of the vacancy.
At the request of the plaintiff, the court instructed the jury as follows: "If you believe from the evidence that plaintiff executed any notes or paid any money upon the mistake of fact that the defendant had complied with the written contract sued on, and that said notes were executed or said money paid by the plaintiff upon the mistaken belief that he was indebted to the defendants herein, and in truth and in fact, plaintiff owed defendants nothing, then and in that event you will find for plaintiff for such money so paid and said notes so executed."
This instruction was in conflict with another given at the request of defendants to the effect that the plaintiff would not be entitled to recover unless one or more of the defendants made false representations to him, and thereby induced him to execute the notes sought to be canceled. The charge complained of should not have been given. Neither law nor equity will relieve against mistakes, unless they are mutual or unless the mistake relied on for relief was brought about by the conduct of the opposite party. The plaintiff does not allege in his petition that there was any mutual mistake, but does allege that he entered into the contract and executed the notes sought to be canceled upon a mistake existing in his mind and superinduced by conduct of the defendants. Such plea presents the issue of fraud only. The charge complained of authorized a verdict for the plaintiff, if the notes were executed by him because of a mistake on his part, although the mistake may not have been caused by conduct of the defendants. This was error and the error was not cured by giving another special charge which correctly stated the law and conflicted with the one complained of. (San Antonio A. P. Ry. Co. v. Robinson,73 Tex. 277; Baker v. Ashe, 80 Tex. 356.)
For the error indicated, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 28