
    W. T. Gann v. J. A. Shaw & Son.
    (No. 3047.)
    Appeal from Williamson County.
   Opinion by

Will-son, J.

§ 255. Admission in answer of cause of 'action; effect of. Where a defendant, in his answer, admits the plaintiff’s cause of action, such cause of action is no longer an issue in the case, and the plaintiff is not required to introduce evidence in proof thereof, but is entitled to judgment, unless the defendant establishes by evidence some matter of defense. [Hedgepeth v. Robertson, 18 Tex. 858; Ante § 1.]

§•256. Burden of proof . Where a defendant pleads in avoidance of a contract sued upon and, in reconvention, the burden of proof is upon him to establish such defenses. [W. & W. Con. Rep. §§ 186, 260, 1178.]

June 14, 1884.

§ 257. Rescission of contract. A court of equity will not rescind a contract unless fraud appear, or there has been a plain and palpable mistake affecting the very substance of the subject-matter of the contract. [W. & W. Con. Rep. § 1309.]

§ 258. Same; fraud. Every misrepresentation in regard to anything which is a material inducement to á. sale, which is made to deceive, and which actually does deceive, the vendee, is fraud, and vitiates the contract. [Wintz v. Morrison, 17 Tex. 372; W. & W. Con. Rep. §§ 4, 1289.] In this case, in order to make good the defense of fraud pleaded by appellees, and entitle them to a rescission of the contract, it was necessary for them to show by evidence: 1. That appellant made false representations to them in regard to the property sold them, as alleged in their petition. 2. That such representations were in regard to something which was a material inducement to the sale. 3. That they believed and relied upon such representations, and wore induced thereby to make the contract. 4. That upon discovering the fraud they promptly, within a reasonable time, demanded a rescission of the contract. [2 Pars, on Con. 921 et seq.] The burden of proving these matters to the satisfaction of the jury, by a preponderance of evidence, devolved upon appellees, and until they had discharged this burden they were not entitled to a rescission of the contract. The charge of the court did not present to the jury the law of the case.

Reversed and remanded.  