This case has twice before received the consideration *210of this- court. ■ On' the first trial of the cause, there was a verdict and judgment for the plaintiffs. This court reversed that judgment, and remanded the cause for another trial. The opinion of the court, on the first appeal, will be found in 10th Tex. Rep., page 57. The judgment of the District Court was then reversed, because, in the opinion of this court, evidence was excluded from the consideration of the jury, which this court was of opinion ought to have been admitted; and because this court was not satisfied with the evidence of fraud on the part of Hall in the transaction with Buxton Layton in the year 1844. This court then said, “ we are not satisfied with the evidence of fraud; and in the absence of fraud on the part of the defendant, we are clear that the plaintiffs were not entitled to a recovery at all.” In another place the court said, “the evidence of fraud is not so satisfactory as it ought to be, to set aside the settlement made between Buxton Layton and Hall in 1844.” The evidence of fraud to which these expressions of the court referred, was the testimony of the witness Williams, which has been relied on by the plaintiffs on every trial of the cause, to establish fraud on the part of Hall in the transaction with Buxton Layton, in the year 1844.
On the second trial of this cause in the District Court, the evidence that had been excluded on the former trial was admitted y and the issue was distinctly submitted to the jury, whether or not Hall had practised a fraud upon Buxton Layton in the transaction between them in the year 1844, and upon this issue the jury found that Hall had practised a fraud upon Buxton Layton. On the second trial of the cause, there was again a verdict and judgment for the plaintiffs. On the second appeal, the judgment of the District Court was again reversed, and the cause was again remanded. The opinion of a majority of this court upon the second appeal will be found in 16th Tex. Rep., page 274. This court then commented upon the testimony of Williams, the witness upon whose testimony the jury founded their verdict on the issue of fraud. The court said, “ we cannot, in principle, distinguish this case from the common one where a trust is attempted to be proven by oral evidence of the admission or declarations of the trust, orally made by the trustee.” In another part of the opinion, it *211Was said, in reference to the testimony of Williams, “such evidence, though competent, is always received with great caution, and subjected to severe scrutiny, because of the great probability of the witness being mistaken in part, or not correctly understanding, or correctly hearing the conversation; and the difficulty, if not the impossibility, of disproving it.” This court did not then say, in so many words, that the evidence of a single witness was not sufficient to establish fraud on the part of Hall, but the court said so in effect, by declaring that “the District Court erred in refusing to grant the motion to set aside the verdict, and grant a new trial.”
From the opinion of a majority of the court on the second appeal, the present chief justice dissented, and expressed his views concerning the case in a dissenting opinion, which will be found in 16th Tex., page 279. In his dissenting opinion, the present chief justice said, “the doctrine as to what will be sufficient evidence to establish a trust, manifestly has no application to the case. It was not questioned that the, defendant was the agent of the plaintiffs in the location of their land scrip, and in procuring the title. * * * * There was and could be no question upon that subject. The question was, whether the discharge of the trust had been procured by fraud.”
On the third trial of the cause in the District Court, the presiding judge instructed the jury, in accordance with the opinion which had been declared by a majority of this court, that “ the testimony of a single witness to verbal statements of a party, is insufficient to sustain a charge of fraud, or to establish a trust in land resulting from it, unless such evidence is strengthened and supported by other evidence of attending circumstances.” The judge, also, on the last trial of the cause, instructed the jury as follows, at the request of the defendant:—“It is to be presumed that Buxton Layton, in 1844, was aware of the correspondence between Layton & Co. and Hall previous to that time, and was acquainted with the business affairs and transactions of the firm, and to defeat this presumption, the testimony must establish, to the satisfaction of the jury, Buxton Layton’s ignorance of such correspondence and transactions.” "I quote this last instruction merely *212for the purpose of remarking, that although the proposition contained in it may be true, as matter of fact, and proper to be addressed to a jury in the way of argument, it can hardly be called a legal presumption that one member of a firm is aware of the correspondence of the firm, and acquainted with the business affairs and transactions of the firm; and a jury would be very apt to be misled by being told that such a legal presumption exists.
The main question in the case, and what has been the main question in the case from the beginning, is as to the sufficiency of the evidence of the witness Williams to establish fraud on the part of Hall in the transaction with Buxton Layton in the year 1844. And upon this question, although it is embarrassing to us to withhold our assent from the rule laid down by a majority of this court on a former appeal in this same cause, yet. we feel bound to express the' opinion that the rule laid down in the opinion in 16th Texas, cannot be supported upon principle in its application to this case. We think, as the present chief justice then thought .and said, that the doctrine as to what will be sufficient evidence to establish a trust, has no application to this case. The question here is simply this: can fraud in the procurement of a settlement between parties, be established by the testimony of a single witness? In the opinion of this court in this cause, reported in 10th Texas, it was admitted that the testimony of Williams was competent testimony. If this be so, we think it was for the jury to say whether or not it was sufficient to establish the truth of the proposition which it was offered to support. The law may well declare, that a certain description of evidence shall not be deemed competent to establish'or prove certain facts, or to disprove other facts. But as has been said, in language that cannot be mended, “the law has no scales wherein to weigh the different degrees of probability; still less to ascertain what weight of evidence shall amount to proof of any disputed fact.” We think that it should have been left to the jury to say, whether or not the evidence showed that the settlement between Hall and Buxton Layton in 1844, was procured by the fraud of Hall, without instructing them that the fraud could not be established by the testimony of a single witness.
*213It is proper to say that the chief justice has left it to my brother Roberts and myself to say whether or not we would adhere to the rule laid down in the opinion of a majority of the court in 16th Texas. Believing that rule to be unsound in its application to a case like the present, and as this case is still within the power of the court, we have believed it to be our duty to declare what we think is the true rule.
We will not discuss other questions presented, for this question of fraud is the controlling one in the' case, and the other questions which are now presented may not arise upon another trial.
The judgment is reversed and the cause remanded.
•Reversed and remanded.