Adams v. Loftin

• Decision Date: 15 December 1927
• Docket Number: (No. 2062.)
• Citation: 1 S.W.2d 429
• Parties: ADAMS v. LOFTIN et al.
• Court: Texas Court of Appeals

1 S.W.2d 429

ADAMS v. LOFTIN et al.

(No. 2062.)

Court of Civil Appeals of Texas. El Paso.

December 15, 1927.

Appeal from District Court, Dallas County; Louis Wilson, Judge.

Suit by Joel D. Loftin and another against R. V. Adams and another. Judgment for plaintiffs, and defendant named appeals. Reversed and remanded.

Callaway, Dalton & Callaway, of Dallas, for appellant.

Geo. Sergeant, of Dallas, for appellees.

WALTHALL, J.

On the 19th day of February, 1926, the appellant, R. V. Adams, was operating an automobile tire retreading business at 1904 Pacific avenue, in the city of Dallas. His equipment consisted of machinery suitable for repairing and retreading automobile tires, together with a delivery truck and the lease upon his building, which had been in operation at that place for about eight months. On said date Adams sold his business and all machinery and equipment and the good will of his business to appellees Joel D. Loftin and Troy E. Hill for a total consideration of $2,918.80. $300 of the consideration was paid in cash, and $750 was paid by the delivery to Adams of a Dodge sedan automobile, and the remainder, $1,868.80 was represented by a note executed by appellees to Adams, payable in installments of $100 per month, due on the 19th day of each month beginning March 19, 1926, and bearing 8 per cent. interest on principal and past-due interest, and secured by a chattel mortgage on the entire equipment and machinery.

The Republic National Bank became the owner and holder of the note and the mortgage lien given to secure the note. Loftin and Hill paid the bank the installments maturing in March and April, 1926, and filed this suit on May 1, 1926, against Adams and the bank, asking that said sale be rescinded and the note in the hands of the bank be canceled on the ground that Adams represented to them that he would immediately pay off a mortgage note to the Dixie Mold Company for $230, and that he had not done so; that Adams represented to them that there were no other debts against the business sold to them, but that there were two open accounts that Adams owed, one for $31.99, the other for $122, and that they believed there were other debts which they had not learned of; that Adams made other statements and promises alleged to be false, and to which the court sustained special exceptions, and of which ruling no complaint is made, and which we need not state; that Adams represented to them that the business had been making $1,000 per month, and would continue to make a like amount in the future, and which statement was false; that the $1,868.80 note would be held by Adams' father and collected by him for Adams, but that said note had been transferred to the Republic National Bank; that because of those alleged statements and promises, alleged to be false and fraudulent, appellees asked that said sale be set aside and canceled, including the note held by the bank, and the purchase money already paid be returned to them.

Adams answered by general demurrer, a number of special exceptions, and general denial, and special denials. The bank answered, but, as no issue is made here as to the bank, we will omit further reference to its pleas.

The court overruled appellant's general demurrer and, on special exceptions, struck out the part of the petition relating to the $230 mortgage debt, and the allegation that Adams represented that the business would continue to make $1,000 per month in the future, and other allegations in the petition amounting only to promises and statements, not amounting to statements of fact, and of which no complaint is made here by appellees.

The case was tried without a jury, and judgment rendered canceling and rescinding the sale, decreed that Adams return to Loftin and Hill the $300 in money and the Dodge sedan received by...