Binder v. Millikin.

• Decision Date: 23 January 1918
• Docket Number: (No. 5958.)
• Citation: 201 S.W. 239
• Parties: BINDER v. MILLIKIN.
• Court: Texas Court of Appeals

201 S.W. 239

BINDER v.MILLIKIN.

(No. 5958.)

Court of Civil Appeals of Texas. San Antonio.

January 23, 1918.

On Motion for Rehearing, March 6, 1918.

Appeal from District Court, La Salle County; J. F. Mullally, Judge.

Suit by H. W. Binder against W. H. Millikin, in which J. R. Black intervened.From the judgment rendered, plaintiff appeals, and intervener files a brief.Reversed and rendered.

Hicks, Hicks, Dickson & Bobbitt and B. W. Teagarden, all of San.Antonio, E. C. Tinley, of Council Bluffs, Iowa, and Guinn & McNeill, of San Antonio, for appellant.Mann & Henry, of Laredo, J. Albert Strawn of Cotulla, and Arnold, Cozby & Peyton, of San Antonio, for appellee.

FLY, C. J.

This suit was instituted by appellant against appellee to recover on two promissory notes executed by appellee, each in the sum of $83,333.34, payable respectively on September 1, 1913, and September 1, 1914, each bearing date of May 13, 1911, the consideration therefor being part of the purchase money of about 21,845 acres of land in La Salle county, Tex.It was alleged that appellee had paid $123,333.34 on the land and that the two notes sued on evidenced the balance due on the purchase money of the land.The original answer of appellee consisted of a general demurrer and general denial.That answer was filed on October 24, 1916, and on February 7, 1917, an amended answer was filed which, among other things, set up fraud on the part of the agent of appellant and his undisclosed cestui que trust or beneficiaries in the land, whereby he was overreached and caused to pay largely more for the land than it was worth.Appellee prayed for a rescission of the contract of sale, and in the alternative for damages in the sum of $200.000.J. R. Black, the agent who was alleged to have made the fraudulent representations in regard to the land, intervened in the suit.The cause was tried by jury and resulted in a verdict and judgment that appellee had not acquired the interest of J. R. Black in the land; that appellee should recover of appellant $125,756.62, the difference between $300,000 paid by appellee for the land and personal property, and its market value with legal interest from April 25, 1915; and that appellant recover of appellee the balance remaining of $67,667.02.A lien was foreclosed on the land to secure the amount last named.

No objection was made by Black or any one else as to the judgment in his favor, no motion for a new trial being filed by him.He is not included in the appeal bond but files a brief here, styling himself appellant.He got all he asked for in the trial court, seems to have been perfectly satisfied with the verdict and judgment, and all the other parties are satisfied also, and he has no standing in this court.If he desired to assist appellant in his case, and had any interest therein, he should have had himself made a partyplaintiff, and should have preserved his rights, if any, by proper action in the trial court.

The facts show that appellant, representing a number of nonresidents of Texas, bought about 22,000 acres of land in La Salle county; the trustee having an interest in the land with the other beneficiaries.The land was bought by a number of men, the title being placed in a trustee because of the large number of the beneficiaries.On May 13, 1911, the land was sold by the trustee to appellee.The sale was brought about through negotiations between J. R. Black, one of the beneficiaries who had charge of the land, and appellee; and a preliminary contract of sale was entered into between Black and appellee, the understanding being that appellee would go to the home of appellant in Council Bluffs, Iowa, and there enter into a final contract for the purchase of the land.The contract made by Black was not approved by appellant on account of certain provisions as to releasing certain portions of the land from the vendor's lein, upon payment of certain sums.Appellee had been shown over a large part of the land before signing the first contract, but, after that was rejected by appellant, appellee again visited the land and went over and examined it.He then in company with Black went to the home of appellant in Iowa, and there the final contract of purchase was entered into between appellant and appellee; the latter agreeing to pay for the land, live stock, and other personal property, the sum of $300,000, the sum of $10,000 in cash, four notes for $10,000 payable in June, July, August, and September of 1911, and three notes each for $83,333.34, payable respectively on or before September 1st of 1912, 1913, and 1914.The cash payment was made, and all the notes were paid except the last two for $83,333.34 each, which were not paid and form the basis of this suit.After the execution of the contract of purchase, appellee and Black went into possession; this being about May, 1911.There was an agreement between appellee and Black that the latter should have a one-half interest in the property bought from appellant.Appellee testified that on April 27, 1911, which was just two days after the "preliminary contract," as appellee calls it, appellee was in Tulsa, Okl., where he received a telegram from Black asking him to write him (Black) a letter stating that he had bought everything and would sell Black a half interest in the property at the same price and on the same terms as appellee paid.A month thereafter appellee wrote and sent a letter containing an option to Black to buy one-half the land, and he and Black formed a partnership which continued for about two years, when it was terminated by a personal difficulty between the partners, and Black then left the property.Appellee visited the land a number of times and went all over it before and after he purchased it, but no complaint was made about it until four months after this suit was instituted, when the second amended answer was filed.

Appellee swore that the representations of Black were that the land contained 21,874 acres of land, more or less; that it was the best land in La Salle county; that 8,000 acres of it was river bottom, and it could be cheaply irrigated from the river; that the balance of the land was worth from $15 to $25 an acre, and the land was a bargain at $300,000; that it was worth $500,000 or more; that the land could be sold; that there was a demand for such lands; and that the land was good for agricultural and irrigation purposes.He also represented that the land would produce two crops a year and the crops would be worth $250 an acre; that the owner had made large money in farming the land; that other parties were anxious to purchase the land; that they had sold 90 per cent. of the land from the Cross S ranch; that they had nine automobiles and an agency in five states; that the river had from 6 to 8 rises every year; that the well on the land produced water good for irrigation; and that it would furnish from 500 to 600 gallons a minute.He also told appellee that it would be wise to buy Binder's half interest in a certain 400 acres and locate a dam on it.

These representations, appellee swore were made on his first visit to the land, but were not acted upon there, and appellee and Black returned to San Antonio, where he states the following matters occurred:

"With reference to what occurred after we came back to San Antonio from that trip with reference to me taking the whole ranch or part of the ranch between Black and I, I would say after making all these representations he got me interested, and I was willing to buy $50,000 worth of the land.Then he told me that his company would not sell a part of it, but that they wanted to sell it all.Then I suggested that I might get interested in the company—in the parent company—and we talked about the party who lives in Philadelphia.He told me he was connected with the Penn Life Insurance Company.That name has slipped my memory, but he told me he either owned or controlled $30,000 worth of the interest in the concern, and he wired that company or that gentleman inquiring what he would take for his stock, and I do not remember what the reply was; but I was not given an opportunity to buy that at least.Then I told Mr. Black that the proposition was entirely too large for me to take on and I did not care to enter in the purchase of the whole property.Then, possibly five or six hours after this, he came to me again and said to me if I would purchase the property he would take one-half interest in it.He told me of his ability to take care of that half interest, and that he had two or three farms in Iowa, and under that promise I did buy the whole property.I then signed the preliminary contract very soon after that.I would not be positive as to whether it was that day, or the next day, I signed it and put up a check of $1,000, is my recollection, I think it was that day or very soon after.This contract that you show to me, dated the 25th of April, 1911, is the one that I refer to."

The first contract was not made, it appears, until after Black had entered into a partnership with appellee to buy the land, and the contract was really one of sale to Black and appellee, made by Black and appellee.Before the contract of sale was made, the agent had turned aside from his agency and was acting in behalf of his own interest.In that contract, which was repudiated by his principal, Black endeavored to bind his principal to release to appellee any of the land sold by him, upon a payment by him of $15 an acre, which placed it in his power to have the best land released for that price and leave the less valuable land as security for deferred payments.It was an agreement clearly adverse to appellant and in the interest of Black and appellee.Black had turned aside from the faithful and loyal prosecution of the work of the agency; he had assumed to enter into a partnership with a prospective buyer of the subject of the agency and to contract for privileges for the...