Burcum v. Gaston

• Decision Date: 06 June 1917
• Docket Number: (No. 1189.)
• Citation: 196 S.W. 257
• Parties: BURCUM v. GASTON.
• Court: Texas Court of Appeals

196 S.W. 257

BURCUM v. GASTON.

(No. 1189.)

Court of Civil Appeals of Texas. Amarillo.

June 6, 1917.

Appeal from District Court, Dallas County.

Suit by Frank Burcum against W. H. Gaston. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

McCutcheon & Church and W. D. Cardwell, all of Dallas, for appellant. Muse & Muse and T. F. Lewis, all of Dallas, for appellee.

HUFF, C. J.

The appellant instituted this suit in the district court of the Sixty-Eighth district, for Dallas county, against the appellee, W. H. Gaston, alleging that on the 16th day of June, 1913, plaintiff and defendant entered into a written contract by virtue of which plaintiff, appellant here, agreed to purchase 5.483 acres of land in the South Dallas Garden, known as tract No. 15, block 6, at an agreed price of $822, $12 cash and the balance in 81 payments of $10 each, with interest from date at the rate of 8 per cent. per annum; that plaintiff had paid defendant $222.40 on the contract, leaving a balance of $600 due thereon; also that on the 2d day of September, 1913, these parties entered into a written contract, whereby plaintiff agreed to purchase 8.682 acres, being tract 18, block 6, in South Dallas Garden, at an agreed value of $1,302.30, payable $17.30 cash, which was paid when the contract was executed, with 84 monthly installments of $15.30 each, with interest at the rate of 8 per cent. per annum from date; that plaintiff paid $124.40 thereon, leaving due the sum of $1,177.90 on the contract; that by the terms of the written contract appellant has paid $346.80, and that there is a balance due on said contracts amounting to $1,777.90. It is also alleged that appellant was induced to enter into said contract by false and fraudulent representations made by defendant and his agents; that they represented that the land had not overflowed since the year 1908, and was suitable for truck raising and gardening, and that by reason of the construction of what is known as the White Rock dam, a short time prior to the execution of the said contract, such construction and erection of the dam had prevented all overflows from White Rock creek, and would in future prevent overflows on the land; that the cleaning of the Trinity river by the federal government would make backwater over the land very rare, if not entirely stop it; that the representations so made were false, and known to be so when made by appellee and his agent; that appellant relied upon the representations so made, and believed them, and that he was thereby induced to sign and deliver the contracts above mentioned; that as a matter of fact the land contracted to be sold to appellant has overflowed, both in the fall and the spring of each and every year since he bought it, and is so located and situated as it will continue to overflow in the future; that by reason thereof it is of no value and useless, and that therefore there was a lack of consideration for the contracts. Appellant tendered the contracts to the defendant in his pleadings, and offered to rescind. The prayer in the petition is to recover the $346.80 paid with interest, and for judgment canceling the contract, and for general and special relief, etc. The defendant, appellee here, answered by general exception and general denial. The judgment of the court recites, in effect, that the defendant presented his general exception, and that the court held his ruling in abeyance, and ordered the case to proceed to trial. Thereupon both parties announced ready, and the jury was selected, who heard the petition and answer read, and the two contracts set out in plaintiff's petition were offered in evidence, whereupon the defendant objected to the introduction of the evidence of the two contracts because the amount sued for and in controversy was less than $500, and not within the jurisdiction of the court, and because the said contract ipso facto became null and void upon default of payment, and that the money paid thereunder was applied on the purchase money on the obligation to purchase the land, and that there was no allegation in the petition that the defendant was making any claim for the alleged balance under said contract, and that they automatically terminated in the absence of allegations to the contrary; and the defendant further at said time insisted upon a ruling upon his general demurrers, and that the same be sustained. The court, after considering the matter, advised plaintiff that in his judgment the general demurrer and the question of jurisdiction raised were well taken, and suggested that plaintiff withdraw his announcement and continue the cause to make amendment. The plaintiff announced that he would stand upon his pleading—

"whereupon the court sustained the defendant's general demurrer and said defendant's said objections, on the ground of want of jurisdiction, and stated that he would dismiss the case. The plaintiff declined to amend, whereupon the plaintiff's counsel insisted upon the disposition of the case by the jury, and duly...