Saunders v. Wilson

WILLSON, O. J. (after stating the facts as above). On the theory that if he made the representations as charged and they were false, and if appellee was induced to make the exchange because he believed them to be true, appellee nevertheless was not entitled to the relief he sought, because he went onto *516 and inspected part of the land before the exchange was made, appellant requested the court to charge the jury to find in his favor, and in his first assignment complains of the refusal of the court to do so. The contention under the assignment is that, having undertaken to make an investigation to determine whether the representations were true or not, appellee was chargeable with knowledge of all a proper investigation would have disclosed, and that such an investigation would have fully disclosed the truth about the land. The proposition seems to have support in the authorities. Patterson v. Bushong (Tex. Civ. App.) 196 S. W. 962; Newman v. Lyman (Tex. Civ. App.) 165 S. W. 136; Campbell v. Jones (Tex. Civ. App.) 230 S. W. 711; 12 R. C. L. 357, 361; 26 C. J. 1162 et seq. If by a “proper” investigation is meant such an investigation as a particular complainant under all the circumstances of a case reasonably should have made, perhaps the rule is not indefensible, notwithstanding it might operate in a given case to shield a wrongdoer from liability to one in fact misled by him to his injury. But whether it means that, or means that a complainant who makes an investigation to ascertain whether representations to him were true or false is chargeable with knowledge of all a reasonably prudent person would have ascertained by the investigation, we do not think it was error for the court in the instant case to refuse to peremptorily instruct the jury as he was requested to. Por we think it was for the jury, and not the court, to say from the testimony what a proper investigation would have disclosed, and whether with a knowledge of what such an investigation would have disclosed appellee nevertheless relied, and had a right to rely, upon the representations, if any, made to him by appellant. It appears from a' bill of exceptions in the record that three of the jurymen were in favor of returning a verdict for appellant, and that they were induced to agree to the verdict in appellee’s favor by statements made by another juror during their deliberations that he knew the 32½ acres of land and knew that 20 acres of it was broken and rocky, was never in cultivation, and was fit for use only ás a pasture. In his motion for a new trial appellant insisted that the facts just stated showed such misconduct on the part of the jury as entitled him to a new trial, and he complains in assignments in his brief of the action of the court in overruling that ground of his motion. The contention must be sustained. As the matter is presented by the bill of exceptions, the three jurors would not have agreed to the verdict rendered in the absence of the statement made by their fellow juror, so a question as to whether appellant’s rights were prejudiced by the misconduct complained of or not is not presented. It affirmatively appears they were. Under those circumstances, we think the .course the trial court should have pursued was not a matter within his discretion, but that he was bound to set aside the judgment. As said by the court in Fort Worth v. Young (Tex. Civ. App.) 185 S. W. 983: “By our laws a litigant has a right to a trial by twelve impartial jurors, and the rules for their government are so framed that each and all shall be free from all probative forces except such as may be submitted to them under the rulings of the court.” When it appears as plainly as it does from the record before us that the right referred Lo has been denied a litigant, there can be no doubt, we think, that the verdict and judgment against him should be set aside. The judgment is reversed, and the cause is remanded for a new trial.