Calloway v. Booe Collier

LEVY, J. (after stating the facts as above). [1,2] If the sale was procured by false and fraudulent representations of the seller, as alleged and as found by the jury, then the venue of the suit was properly in Van Zandt county where such alleged fraud was shown by the evidence to have been committed. Article 1830, subd. 7, Vernon’s Sayles’ Statutes; Howe Grain & Mercantile Co. v. Galt, 32 Tex. Civ. App. 193, 73 S. W. 828; Day v. Steverson, 145 S. W. 1062; Trust Co. v. Cowart, 173 S. W. 588. The appellant’s assignments of error in this respect are overruled. [3] If the suit had been on the contract of sale, then appellant’s objection to the evidence, complained of in the several bills of exception, should have been sustained by the-court upon the ground that it varied the terms of a written contract. But the petition sought rescission of the sale upon the ground, that it was procured by false and fraudulent representations of the seller, and therefore the evidence was admissible as showing and bearing upon the alleged false and fraudulent representations that procured the sale. 1 Black on Rescission and Cancellation, §§ 68, 69, and 111. The cases of Luckenbach v. Thomas, 166 S. W. 99, and Box Co. v. Spies, 109 S. W. 432, relied on by appellant, are distinguishable from the case here. The Luckenbach Case was to the effect that where there was a breach of warranty in a contract of sale before the delivery of the deed, the purchaser accepting the deed containing the warranty, with knowledge of the breach, could not rescind, but could merely recover damages for the breach. The Spies Case was upon the contract for breach of it, and the defense was the instrument left out and did not include certain stipulations. *1176 The charge of the court correctly submitted the law applicable to the case, and sufficiently presented the defenses authorized by the proper issues. The assignments of error relating to objections to the charge and the refusal of special charges should be, it is concluded, overruled as presenting no reversible error. The judgment is affirmed. Footnotes [1] <®a^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes