Childress v. Tate
| Decision Date | 06 April 1912 |
| Citation | 148 S.W. 843 |
| Parties | CHILDRESS v. TATE.<SMALL><SUP>†</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Parker County; D. M. Alexander, Special Judge.
Action by J. W. Childress against W. E. Tate. Judgment for defendant, and plaintiff appeals. Affirmed.
Stennis & Wilson and H. L. Moseley, all of Weatherford, for appellant. Preston Martin and Hood & Shadle, all of Weatherford, for appellee.
J. W. Childress instituted this suit against W. E. Tate, to recover an undivided one-sixth interest in a small tract of land in Parker county. He alleged that he gave the defendant the interest sued for to "compensate him for the sale of a certain crude oil burner contract in exchange for the said tract of land."
The defendant answered, among other things, that the plaintiff was acting as the agent of one Yeargin in the sale of the land, and falsely represented its value to be $6,000; that the same was well improved with good fences, good houses, and had an orchard thereon. The defendant further alleged that in fact the property was worth less than $4,000; that in the trade the defendant paid Yeargin $2,400 in cash, assumed notes against the land in the sum of $1,600, and gave the crude oil burner contract, of the estimated value of $2,000; that the real contract between the defendant and the plaintiff was that he (plaintiff) was to have one-half of the amount for which he could sell the place over and above the $4,000 paid by defendant; that the plaintiff at the time represented that he had a purchaser for the land at the price of $6,000; that in fact he had never sold the land, and had never attempted to sell it.
The jury returned a general verdict in favor of the defendant, and the court's judgment was in accordance therewith.
In appellant's first assignment of error, complaint is made of the action of the court in admitting the testimony of Preston Martin, an attorney at law, to the effect that when he (the plaintiff) first came to his office to get him to write a deed to the one-sixth interest in controversy nothing was said about plaintiff having the written statement, signed by the defendant and produced upon the trial, which recites that he (the plaintiff) was entitled to a one-sixth interest in the land. We find no error in this action of the court. Appellant's statement under the assignment fails to disclose that Mr. Martin's advice was solicited as to any legal question relating to the transaction. For aught that appears, Mr. Martin was acting merely as a scrivener; and hence, communications between the parties at the time, or mere silence, on a given subject was not privileged. See Stallings v. Hullum, 79 Tex. 421, 15 S. W. 677. Moreover, we fail to see the materiality of the complaint. The defendant admitted the execution of the statement, but denied that the effect sought was intended. The instrument did not purport to be a conveyance nor contractual, but was recitative merely and susceptible of contradiction or explanation.
In appellant's second, third, fourth, fifth, sixth, and seventh assignments, which are grouped, complaint is made of the introduction of the testimony of certain witnesses, relating to the market value of the tract of land involved, on the ground that the witnesses had not properly qualified. The witnesses referred to testified, in substance, either that they had lived on adjoining farms from 10 to 25 years, or had lived upon the place and cultivated it for a number of years, and knew the value of land in the vicinity, and knew about what land sold for in the neighborhood, and on the whole we think manifested such familiarity with the land, with its improvements, with the character of the orchard thereon, and with other particulars, as to at least authorize the introduction of the testimony and to express their opinion of values. S. A. & A. P. Ry. Co. v. Ruby, 80 Tex. 172, 15 S. W. 1040.
In appellant's eighth assignment, objection is made to the second section of the court's charge,...
To continue reading
Request your trial
-
In re Bivins
...Id. In such cases, the attorney is considered a "mere scrivener." See Sutton, 47 S.W.3d at 184; Childress v. Tate, 148 S.W. 843, 844 (Tex.Civ.App.-Fort Worth 1912, writ denied). Here, Larry testified that he paid Pettigrew to prepare the deed and that confidential communications were disclo......