Briggs v. Rodriguez, 12209

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Citation: 236 S.W.2d 510
• Docket Number: No. 12209,12209
• Parties: BRIGGS v. RODRIGUEZ et al.
• Decision Date: 10 January 1951

Page 510

236 S.W.2d 510

BRIGGS v. RODRIGUEZ et al.

No. 12209.

Court of Civil Appeals of Texas, San Antonio.

Jan. 10, 1951.

Rehearing Denied Feb. 7, 1951.

Strickland, Wilkins, Hall & Mills, Mission, for appellant.

John C. Myrick, Harlingen, for appellees.

NORVELL, Justice.

E. H. Briggs, the defendant below, has appealed from a judgment rendered on a jury verdict cancelling a royalty deed executed by appellees, Castulo and Clara Rodriguez, and awarding them a money judgment against appellant for $300 actual damages and $1,000 exemplary damages.

Appellant centers his attack here against that part of the judgment awarding money damages against him. By his first four points, appellant contends that the evidence shows, as a matter of law, that appellees' claim for damages is barred by the two-year statute of limitations. Article 5526, Vernon's Civil Statutes. The defense of limitation was injected into the case by a trial amendment. Issues relating thereto were submitted to the jury by the trial judge and although some contention is made in appellant's brief that the pleadings of appellees were insufficient in certain particulars, it does not appear that any objection was made to the submission of the issues relating to limitation on the grounds that the pleadings were in any way deficient.

Appellant's position below and his primary position here is that the evidence shows conclusively as a matter of law that appellees' action was barred. It appears that the alleged fraudulent representations were made two years before appellant's original petition was filed. The evidence is clearly sufficient to show that appellees did not actually discover the fraud until shortly before the suit was filed. The question presented here then is whether or not the appellees failed to use reasonable diligence to discover the fraud Glenn v. Steele, Tex.Sup., 61 S.W.2d 810.

It appears from the evidence that the appellees had purchased a twenty-acre tract of land from E. P. Cravens through appellant, Briggs, who was acting as an agent for the vendor. Briggs had known Mrs. Castulo Rodriguez since she was a baby and had been acquainted with her husband, Castulo Rodriguez, for a number of years. Appellees lived about two and a half miles from the Briggs residence. Appellees testified that neither of them were able to read the English language and understood very little English when they heard it spoken. Both testified through an interpreter. Some weeks prior to March 10, 1947, Briggs talked with the appellees about their purchasing a ten-acre tract owned by Robin Pate, which adjoined the Cravens tract. It may be inferred that in so doing Briggs was acting as Pate's agent, although he testified that he had an agreement whereby he was to purchase the Pate ten acres as agent for appellees and was to receive the royalty deed hereinafter mentioned as and for a commission. Briggs, apparently with Pate's authority, told appellees that they could buy the land by paying $500 cash and assuming the taxes due thereon. Appellees agreed to this and paid over to Briggs $300 as earnest money and received Briggs' receipt therefor. Appellees thereupon went on the land, and commenced the clearing of brush therefrom so that it could be farmed. Some weeks thereafter, about March 10, 1947, Briggs told appellees that Pate was ready to close the deal but that instead of wanting $500 for the land he now demanded $800, that is, $500 in addition to the $300 theretofore paid as earnest money. Castulo Rodriguez testified that Briggs represented to him 'that Mr. Robin Pate had said that I had to pay cash for the land, and if not that somebody else would buy it. * * * Mr. Briggs told me that Robin Pate wanted the five hundred dollars.' This was in addition to the $300 already paid. Rodriguez testified that he had lots of confidence in Mr. Briggs and believed what he said; that he believed Pate had demanded the extra $300, and that if he didn't pay it, the property would be sold to someone else and he would lose all that he had put in the land by grubbing off the brush and clearing the land. The testimony of Mrs. Rodriguez corroborates that of her husband. Pate testified that all he ever asked or received for the land was $500. The jury found that appellees were induced to pay over an additional $300 to Briggs by means of false representations. The jury also found that Briggs secured the execution of a royalty deed by the appellees covering the entire thirty acres, by falsely representing to them that such deed was a paper which it was necessary for them to sign in order to secure a deed from Pate. This royalty deed was ordered cancelled by the court in its judgment.

The jury found that appellees discovered that Briggs had defrauded them of $300 in November, 1949. At that time appellees attempted to sell the ten-acre tract of land purchased from Pate and discovered that in their deed there was a reservation of a one-fourth mineral interest, and that the title was further burdened by the royalty deed which Briggs had fraudulently obtained. Appellees then discussed the matter with Pate, who stated that the entire consideration asked and received by him for his conveyance of the property was $500, and that the mineral reservation contained in the deed was the result of a mistake. Pate promptly quitclaimed all of his apparent interest in and to the property.

The jury answered in the negative an inquiry as to whether or not the appellees should have, by reasonable diligence, discovered prior to December 17, 1947, that the representations made to them by Briggs in procuring the payment of an additional $300, were false. Appellees' original petition was filed December 16, 1949.

Appellant relies primarily upon the provisions of the deed executed by Pate as charging the appellees with notice that the actual consideration demanded by Pate for the conveyance was only $500.

This is not a suit involving title as between Pate, as grantor, and the appellees, as grantees, and for this reason many of the authorities cited by appellant have no application. When effect is given to the jury's findings, it is apparent that the fraud involved here has the earmarks of a confidence game. Briggs acquired the confidence and trust of appellees, who did not understand the English language. After appellees had taken possession of the land, paid earnest money, and made valuable improvements, Briggs took advantage of this situation to exact $300 over and above the actual consideration by falsely representing to them that Pate would not go through with the original deal, but would sell the property to someone else unless they paid an additional sum of money. In accepting the statements made by Briggs and acting thereon, appellees may have been over trusting and unduly credulous. It may be that a cautious man would not have relied upon Briggs' statements, but would have insisted upon talking the matter over with Pate before paying out any more money. However, the law affords some protection to the credulous, the over-trusting and the ignorant. In order to claim redress for fraud it is not essential that one must have acted with utmost shrewdness and business acumen. Hawthorne v. Walton, Tex.Civ.App., 30 S.W.2d 397. The test of the ordinary prudent man is applicable. Appellant is hardly in a position to complain of the fact that appellees relied upon a representation which he said was true. However, in support of his claim that appellees should have discovered the fraud immediately after it was perpetrated, the appellant blows hot and cold. In his brief he says that, 'It is to be borne in mind that appellant was the agent for Pate and was in no fiduciary relationship with appellees.' Upon the trial he testified that he was acting for appellees in purchasing the property from Pate and received the royalty deed as a commission for his services.

It is difficult to see how the contents of the deed from Pate have any particular bearing upon the case. Appellees could not read it. The recited consideration was 'the sum of Five Hundred ($500.00) and No/100 Dollars and other good and valuable considerations.' A reading of this deed, even by one who can understand it, does not demonstrate the falsity of the representation that Pate had demanded an additional $300.

However, if the provisions of the deed be considered as having any weight, they could not operate to take the issue of reasonable diligence from the jury. In Swearingen v. Swearingen, Tex.Civ.App., 193 S.W. 442, 452, this Court, speaking through Mr. Justice Moursund, said: 'The rules of law are well established, but in applying them to the facts of a case great difficulty is frequently experienced, and it appears to us that sometimes they have been so applied as to practically require the injured party to become suspicious right after the deal is consummated, and start an investigation, although no new facts have come to his knowledge. On the other hand, in some of our cases it is considered that the party is justified in remaining inactive until he has knowledge of some fact which would put him upon inquiry whether the representations were false. Coleman v. Ebeling (Tex.Civ.App.), 138 S.W. 199-204; Isaacks v. Wright, 50 Tex.Civ.App. 312, 110 S.W. 970; Smalley v. Vogt (Tex.Civ.App.), 166 S.W. 1. Each case must be decided upon its own facts, and the conduct of the party must not be judged by what a very cautious and suspicious person would have done under the same circumstances, but by what a person of ordinary prudence, situated as was plaintiff, would have done.'

The recent case of Clopton v. Cecil, Tex.Civ.App., 234 S.W.2d 251, decided by this Court on October 25, 1950, holds contrary to appellant's contention. See also: Isaacks v. Wright, 50 Tex.Civ.App. 312, 110 S.W. 970; Smalley v. Vogt, Tex.Civ.App., 166 S.W. 1; Stone v. Burns, Tex.Civ.App., 200 S.W. 1121; Luginbyhl v. Thompson, Tex.Civ.App., 11 S.W.2d 380; McCord v. Bailey,...