The errors assigned only put in question: (1) the petition as on general demurrer; (2) the charge to the jury; (3) the sufficiency of the testimony to sustain the verdict; and (4) the sufficiency of the verdict to sustain the decree.
1. The petition alleges representations by defendant to material facts, constituting an inducement to the contract; relied on by the plaintiff; not within plaintiff’s knowledge; and owing to the remoteness of the situation of the land, plaintiff could not examine it, but was induced to rely upon the representations by defendant; that the representations were false; an offer at once on discovery of the facts by plaintiff to restore the land and money received; refusal, etc.
In the absence of special exceptions, these facts were sufficiently alleged, and they would be ground for equitable relief, by rescission. Adams on Eq., 176 and note, and authorities; Story’s Eq. Jur., §§ 192-200; Jackson v. Stockbridge, 29 Tex., 400; Mitchell v. Zimmerman, 4 Tex., 82; Wintz v. Morrison, 17 Tex., 372.
2. There were no objections taken to the charge of the court, nor were instructions asked by the defendant. While the charge is not as full as may have been desirable under the range of testimony under the pleadings, there is no error noticed in its terms or legal effect. For mere deficiency in the charge, not noticed by the party affected, or likely to be *190affected, by such omission, the appellate courts do not reverse. It is presumed that the charge was satisfactory when given, and that parties are at that time the best judges of what issues are material, and what form of instructions are best adapted to aid the jury in reaching correct results upon the testimony as actually before them.
[Opinion delivered May 10, 1880.]3. The verdict has testimony to sustain it. The main allegations in the bill were well supported by evidence. There was conflict in some details; and testimony which, if believed, may have justified a verdict for the defendant. In cases of conflict the jury is made the tribunal whose act is conclusive except in clear cases of abuse. The greater part of the vigorous argument of appellant is directed to the sufficiency of the testimony. The answer is that there "was conflicting testimony and the jury could determine which witnesses to believe.
4. The verdict ascertaining “the damages and rents to the amount of $126” seems to have been made upon the testimony and without regard to the allowed offset of $125, recognized in the pleading, and clearly shown by the evidence as having been received by plaintiff on the contract from defendant. The plaintiff has offered to correct the error and -remit the excess of $125, so found. The rights of the parties will be attained under the facts found by the verdict by reversing and rendering the judgment so as to conform to this correction. Judgment will be rendered "as below, but for $1 damages; costs of appeal taxed to appellee.
Beversed and rendered.