Hart-Parr Co. v. Krizan Maler

Statement of the Case. JENKINS, J. Plaintiff in error, through its agent, S. M. McCracken, sold defendants in error a thrasher, for the agreed consideration of $930 — cash $300, notes $630 — retaining a mortgage on the thrasher. The plaintiff in error subsequently foreclosed its mortgage, and sold said thrasher for $375, and collected the remainder by suit against defendants in error. Defendants in error brought this suit for damages, alleging that the thrasher was worthless to them for the purposes for which it was bought, and that they were induced to buy same through the fraudulent representations of said agent; that said thrasher proved to be worthless for,, the purposes for which it was bought; and that after testing the same .they promptly returned it to .the depot at which it was received, and notified plaintiff in error of that fact Defendants in error claimed as damages the price they paid for the thrasher, the money expended in attempting to operate it. and profits which they would have made if it had been as represented. . Plaintiff in error answered by general and special exceptions, general denial, and alleged that the thrasher was sold under a written contract, which.limited their liability as therein set out, and denied that there had been any breach of warranty, as contained in said written contract. Defendants in error, by a supplemental petition, alleged that their signatures to said [836] written contract were obtained by certain false and fraudulent statements of said agent, whereby they were prevented from reading said contract, but were led to believe that it was only an order for a thrasher, stating the price and terms of payment. Findings of Fact. In response to special issues submitted by the court, the jury found: (1) That the signatures of defendants in error to the written contract were procured through the fraud of plaintiff in error’s agent. (2) That said agent did not read or explain said contract to defendants in error. (3) That the thrasher was materially' defective for the purposes for which it was ordered. (4) That defendants in error did not refuse to allow plaintiff in error’s expert agent to attempt to remedy the defects. (5) That the reasonable market value of the thrasher at the time and place of its delivery was $375. 4 (6) That the reasonable market value of the machine ordered by defendants in error was $1,224.40. (7) That plaintiff in error’s agent guaranteed that the freight would not exceed $90. (8) That the oats wasted in attempting to operate the machine were of the reasonable market value of $60. (9) That the profits lost while trying to operate the machine, and before defendants in error could get another thrasher, were $300. (10) That defendants in error were induced, in part, to sign the written contract by the representations and statements of O. R. Westmoreland. (11) That defendant in error Maler was induced, in part, to sign the written contract by the statement of plaintiff in error’s agent that if he did not do so the thrasher would be sold to defendant in error Krizan, and that he (Maler) would not he a partner therein. Judgment was rendered for defendants in. error for the 'amount found in their favor, as above indicated. The evidence sustains the findings of the jury. Opinion. Plaintiff in error has filed 40 assignments, many of which present the same issue in different terms, but with substantially the same meaning. We shall not attempt to discuss these numerous assignments separately, but will group them in accordance with the points presented. The first, second, third, fourth, and twenty-first assignments complain of the action of' the court in overruling plaintiff in error’s demurrers to defendants in error’s petition, wherein is pleaded special damages. Five of these demurrers are denominated special demurrers, but they are in fact general demurrers to special paragraphs of defendants in error’s petition and supplemental petition. We overrule all of these exceptions. The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth assignments are in effect that the court erred in entering judgment on the verdict of the jury for the reasons: (a) Said verdict does not afford a sufficient basis for such judgment; and (b) the findings of the jury are not in response to any issue raised by the pleadings or the evidence. We overrule each of those assignments, for the reason that the evidence was sufficient to raise each of the issues submitted to the jury, and the pleadings of defendants in error were sufficient as against a general demurrer. We will say, however, in this connection, that the allegation that defendants in error were induced to sign the contract by reason of the fraudulent representations of plaintiff in error’s agent were not as definite as they should have been, and might have been subject to a special demurrer in this respect; and that, while the evidence is sufficient to support a finding that defendants in error were induced to sign the contract by reason of the fraudulent representations of plaintiff in error, there is no positive statement by either of them that they were so induced to sign the same. Had the jury found that defendants in error were not induced to sign the contract by reason of such representations, but by other facts appearing in the record, the evidence would have sustained such finding. The thirteenth and fourteenth assignments of error complain of the charge of the court in submitting the issue of fraud, for the reason that the pleadings and the evidence are not sufficient to raise such issue. What we have said in the foregoing part of this opinion is sufficient to dispose of these assignments, and for the reasons stated we overrule the same. Assignments of error Nos. 13 to 26, inclusive, complain of the action of the court in submitting the issues set out in our findings of fact, for the reason that neither the pleadings nor the evidence was sufficient to raise such issues. We overrule each, of these assignments. The twenty-seventh, twenty-eighth, and twenty-ninth assignments complain of the action of the court in not peremptorily instructing the jury to return a verdict for plaintiff in error. It follows from what we have said herein that this instruction was properly refused. [1] The thirtieth assignment of error, as to the refusal of the court to give a requested instruction, contains a correct proposition of law, and ought to have been given, but for the fact that the requested charge also contains matter that is strongly argumentative, and is a very partisan presentation of [837] the issue upon which said charge was requested. The thirty-first and thirty-second assignments of error are as to the refusal of the court to submit to the jury the following questions: (1) “Did the plaintiffs or either of them, prior to signing the written order for the thrasher in controversy, make an investigation or obtain information as to the, character or efficiency of said thrasher, other than information obtained from, or statements made by, defendant’s agent McCracken? You will answer this question ‘Yes’ or ‘No,’ as you may find the facts to be.” (2) “In the event you have answered special issue No. 1, requested by the defendant, in the affirmative, you will answer the following question: Were the plaintiffs or either of them influenced in any manner to purchase the thrasher in controversy or to execute the order therefor, by reason of any investigations made or information obtained as to the character or efficiency of said thrasher referred to in special issue No. 1? You will answer this question ‘Yes’ or ‘No,’ as you may find the facts to be.” [2] Plaintiff in error submits a correct proposition of law under its thirty-first and thirty-second assignments, which is that, if defendants in error signed the contract upon information which they or either of them gained by an independent investigation, judgment should have been rendered for plaintiff in error. But this is not the issue presented by the question asked in said special requested instruction No. 2. The question there propounded is, “Were the plaintiffs or either of them influenced in any manner?” If the words “in any manner” had been omitted, and the jury had answered these questions in the affirmative, the findings would have been equivalent to saying that defendants in error were not induced to sign the contract by reason of the fraudulent representations of plaintiff in error’s agent, which would have been contradictory of their finding to the first issue submitted to them, and would have necessitated a reversal of the case. With these words included in the question, an affirmative finding would not have been stronger in plaintiff in error’s favor than were the findings to the tenth and eleventh special issues, viz. that defendants in error were induced “in part” to sign the contract by reason of the matters stated in said questions. [3] It is not necessary, in order to avoid a contract on the ground of fraud, that such fraud should have been the sole cause of making the same. It is sufficient if the fraudulent representation is relied upon to the extent that it was a material factor in inducing the making of the contract, and without which the same would not have been made. Buchanan v. Burnett, 102 Tex. 495, 119 S. W. 1141, 132 Am. St. Rep. 900; Ry. Co. v. Jowers, 110 S. W. 951; Ry. Co. v. Shuford, 36 Tex. Civ. App. 251, 81 S. W. 1196, 1197; Hindman v. Bank, 112 Fed. 931, 50 C. C. A. 623, 57 L. R. A. 115; Tooker v. Alston, 159 Fed. 599, 86 C. C. A. 425, 16 L. R. A. (N. S.) 822; Stackpole v. Hancock, 40 Fla. 362, 24 South. 914, 45 L. R. A. 821; James v. Crosthwait, 97 Ga. 673, 25 S. E. 754, 36 L. R. A. 633; Roberts v. French, 153 Mass. 60, 26 N. E. 416, 10 L. R. A. 657, 25 Am. St. Rep. 611; Bank v. Fletcher, 158 Mich. 162, 122 N. W. 540, 35 L. R. A. (N. S.) 862; 12 R. C. L. § 112, p. 358. There was evidence tending to raise the issue of an independent investigation. However, we doubt if such evidence was sufficient to bring this case within the rule announced in Patterson v. Bushong, 196 S. W. 962, Newman v. Lyman, 165 S. W. 136, and Cresap v. Manor, 63 Tex. 488. As the submission of this issue was not properly requested, it is not necessary for us to decide this point. The thirty-third assignment of error, in reference to the representation of Westmore-land, rests upon the ground that the fraudulent representations made by plaintiff in error’s agent must have been the sole inducement for defendants in error to sign the contract, and the same is overruled upon the authorities cited in reference to the thirty-first and thirty-second assignments, supra. The thirty-fourth, thirty-fifth, and thirty-sixth assignments are that the verdict is not supported by the evidence. These assignments are overruled for reasons stated in our findings of fact. [4] We overrule the thirty-ninth assignment of error, with reference to permitting testimony as to loss of profits. Loss of profits may be recovered in a proper case, and we think defendants in error allege such a case, especially as against a general demurrer. We have thus overruled all of plaintiff in error’s assignments of error, except the thirty-seventh, thirty-ninth, and fortieth, each of which we sustain for the following reasons: [5] It was error to permit testimony as to the value of certain items of expense alleged to have been paid by defendants in error, for the reason it was not alleged that the amount paid was the reasonable value thereof. Traction Co. v. Bradshaw, 185 S. W. 952. It is elementary that no evidence is admissible which is not based upon pleading. It was error to refuse to permit plaintiff in error to prove by defendant in error, Eri-zan, that immediately after rejecting the thrasher purchased from plaintiff in error he signed a written order for another thrasher, which contained the same stipulations and limitations as the order involved in this case, and that he read and understood the conditions of same before he signed it. This testimony was admissible on the weight ol the testimony of Erizan that he did not read or have read the contract here involved, and did not understand its contents, and would not have signed the same had he done so. In view of the testimony, both positive and eir838 eumstantial, contradicting the testimony of the witness on this issue, we cannot say that the rejection of such testimony was harmless. We think the court erred in not permitting’the defendants in error to read in evidence the original answer of defendants in cause No. 67393, which was a suit to recover on the notes given for the thrasher involved in this case. This evidence was offered to show that the contentions of plaintiff in error in that case were different from those in the instant case. It was admissible as affecting the credibility of defendants in error, and their good faith as to the contentions herein made by them. For the reasons stated, the judgment of the trial court herein is reversed, and this cause is remanded. Reversed and remanded. Footnotes [1] <©S5>For otter cases see same topic and KBY-NXJMBER in all Key-Numbered Digests and Indexes