
    Wells and another v. Barnett.
    Where the plaintiff sued for the specific performance of a bond to convey, which bond the defendants had fraudulently induced him to cancel, &c., the jury found “that the plaintiff recover on his bond the land and appurtenances:” Held, That the verdict was sufficient, being, in effect, a general verdict for the plaintiff. (Note 86.)
    The form of a verdict is not material. If it be intelligible and sensible, and find substantially the material issues, it is sufficient. (Note 87.)
    The province of the jury is, in general, the same in cases of equitable as in those of legal cog* nizanco; and the sufficiency of their verdict will be determined by the application of the same rules.
    That the evidence is not satisfactory to this court is not sufficient; it is not enough that it is not clear that the verdict is right; it must clearly appear that it is wrong, to authorize the roversal of the judgment on that ground.
    It is not error to refuse to give instructions which assume certain facts which are in issue; nor can a party complain where, having asked-an improper instruction, the court modifies it with a proviso not in itself erroneous.
    The court is under no obligation to modify or change instructions asked.
    Although tho threat of a lawsuit is not sufficient to avoid a contract, yet it may be taken into consideration by the jury in connection with evidence of fraud.
    Appeal from Walker. This suit was brought by the appellee against the appellants to enforce the specific performance of a contract for the sale of a mill and lands.
    The plaintiff, Barnett, made the purchase of Jackson Wells, and took liis bond to make title, on payment of the pnrchase-money, for which he gave his notes. The plaintiff alleged that John Wells, the father of Jackson, acquiesced in the sale, and acted as the agent of the latter in receiving payment of the purchase-money; that the title was in John Wells; that lie had paid the purchase-money, and that the defendants refused to make title. He further alleged that the defendants conspired together to defraud him, and by fraudulent contrivances, representing that he could not get a title, threatening him with a lawsuit, &c.. induced him to agree to a rescission of the contract of purchase; that, by the terms of the agreement, the defendant, Jackson Wells, was to deliver to him a note for one hundred dollars, which he would guarantee to be good, and that thereupon he was to deliver to the said defendant his title bond; that the said defendant failed to comply with his part of said agreement, but sent to the plaintiff a note on one Elkins, which was not good, which the said defendant would not guarantee, and which the plaintiff refused and tendered back to the said defendant.
    The defendants demurred, and answered to the merits; among other matters, admitting the contract of sale, but averring that it had been canceled by the consent of the parties; that the plaintiff agreed to take the note on Elkins without guaranty, and that it was delivered to and received by him. They denied the payment of the entire purchase-money and the several charges of fraud. The demurrer was overruled.
    On the trial the defendants asked of the court instructions to the jury, among which were the following:
    “1st. If the jury believe from the testimony that the trade was canceled, and the notes for remaining part of the purchase-money were surrendered by the defendant, Jackson Wells, to the plaintiff at the time, they must find for the defendants.
    “2d. That no threats of a lawsuit can avoid a contract to cancel the said sale of land.
    “5th. That they (the jury) cannot find for the plaintiff if they believe from the testimony that, at the time the land trade was canceled, the plaintiff got into his possession any of the notes for the purchase-money in consideration thereof, and still retains said notes.”
    The first of these instructions the court gave with this qualification : “Unless the jury believe from the evidence that the defendants acted fraudulently in procuring the cancellation.” The second was also given, but with this addition, “But the jury may take it into consideration, connected with other evidence on the issue of fraud.” The last instruction the court refused.
    The jury returned the following verdict: “ Wc, the jury, agree that plaintiff recover on his bond the land and appurtenances thereto.”
    There was a motion for a new trial overruled, and judgment for the plaintiff.
    Appellants, for themselves.
    
      Yoakum %• McCreary, for appellee.
   Wheeler, J.

The grounds relied on in'argument for the reversal of the judgment bring in question, 1st, the sufficiency of the verdict; 2d, the sufficiency of the evidence; and, 3d, the instructions to the jury.

The verdict is, in effect, a general verdict for the plaintiff, on the issues respecting his right to a specific performance of the contract of sale; and it necessarily includes the decision of every material fact well pleaded touching his right to that relief. The verdict is informal; but the form of the verdict is not material. If it be intelligible and sensible, and finds substantially the material issues, it is sufficient.

The province of the jury is, in general, the same in cases of equitable as in those of legal cognizance, and the sufficiency of their verdict will be determined by the application of the same rules. (Carter v. Carter, 5 Tex. R., 93.) By the rules recognized by repeated decisions of this court, the verdict is, we think, sufficient. (1 Tex. R., 93; 2 Id., 203.)

In respect to the sufficiency of the evidence to support the verdict, there is more difficulty. It is unnecessary here to recapitulate the evidence. It may suffice to say that it is far from satisfactory. But this is perhaps to be accounted for in some measure by the fact that, from the character of the dealings between the parties and the confidential manner in which it was conducted, the facts were scarcely susceptible of positive and satisfactory proof. The evidence, however, was sufficient to satisfy the jury, and the.judge who presided at the trial, who evinced his satisfaction by refusing a new trial. And the ruléis applicable here, which we have uniformly applied in similar eases where the controversy consists chiefly of questions of fact, that is, that the verdict must be sustained, unless it appear to have been given against or without evidence. That the evidence may not be satisfactory to this court is not sufficient; it is not enough that it is not clear that the verdict is right; it must clearly appear that it is wrong, to authorize the reversal of judgment on that ground. (1 Tex. R., 326; 2 Id., 381, 3SS. 396.)

The question controverted by the pleadings, on which there is most doubt as to the sufficiency of the evidence, is as to the payment by the plaintiff of the entire amount of purchase-money before bringing bis suit. At the time of the alleged cancellation of the contract, some of the notes given for the purchase-money were in possession of the defendant, and were then delivered to the plaintiff. * The natural inference certainly would be that they were then unpaid. But the evidence showed various payments at different limes, and the delivery of one wagon by the plaintiff to the defendant, after the alleged cancellation of tiie contract and the delivery up to the plaintiff'of the notes. It was in proof that the plaintiff was a credulous, confiding man. The manner in which the payments were made, in lumber, from time to time, may •have justified tlic jury in believing that the notes were not taken up as paid, and that the wagon, delivered after they were given up, was in satisfaction of any balance remaining unpaid. The plaintiff alleged that the notes were fully paid. This the defendant denied. This isáue was thus distinctly presented to the jury. Its decision was necessarily included in the verdict, and we cannot say that they found without or against evidence.

In respect to the alleged rescission of the contract of salo, and the fraud in procuring it, the evidence leaves it uncertain whether the agreement to rescind was completed, and if so, whether it was not induced by the fraudulent conduct of the defendants. These, therefore, were questions proper for the decision of the jury upon the evidence.

We do not perceive that any error in law was committed by the court in the additions made to the 1st and 2nd instructions given at the instance of the defendants, nor in the .refusal of the last instruction asked by them. The first and last assumed that the notes wore unpaid. This was a question of fact for the jury to decide upon the evidence. It did not matter that the plaintiff had gotten possession of the notes and retained them, if, as lie alleged, they were fully paid and satisfied. The court was under no obligation to modify or change the instructions asked, so as to make them legal and proper. In the terms in which it was asked, the instruction refused was not proper. In whose possession the notes may have been, as we have intimated, was not material, provided they were paid.

That the plaintiff could not maintain an action for specific performance, without payment in full of the purchase-money, is unquestionable. No ruling of (lie court presented by the record denied this proposition.

The threat of a lawsuit was so intimately connected with the acts and representations relied on to sustain the charge of fraud that we are not prepared to say that the court erred in refusing to exclude it from the consideration of the jury.

Note 8(5. — Hamilton v. Hice, 15 T., 3S2.

Note 87. — James v. Wilson, ante, 230.

Upon the whole, we are unable to perceive that any principle of law was violated or any manifest injustice done the defendants in tlie proceedings and judgment under revision, or that tlie real justice and law of the case were not as nearly attained as was practicable under tlie pleadings and evidence in the case, and we are of opinion that the judgment be affirmed.

Judgment affirmed.  