Clem v. Fulghum

• Decision Date: 15 March 1933
• Docket Number: No. 1382-5979.,1382-5979.
• Parties: CLEM v. FULGHUM.
• Court: Texas Supreme Court

Page 15

58 S.W.2d 15

CLEM v. FULGHUM.

No. 1382-5979.

Commission of Appeals of Texas, Section B.

March 15, 1933.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by W. W. Fulghum against O. E. Clem. Judgment for plaintiff was reversed by the Court of Civil Appeals [37 S.W.(2d) 201], and each party brings error.

Affirmed.

George T. Burgess, of Dallas, for plaintiff in error.

Crate Dalton and Earl E. Miller, both of Dallas, for defendant in error.

SHORT, Presiding Judge.

This case reached the Court of Civil Appeals twice, and is before the Supreme Court the second time. There are two applications for the writ of error. The controversy involves the right of W. W. Fulghum to rescind the sale of a parcel of land in the city of Dallas apparently made by O. E. Clem to him; also to cancel a note for $2,300 given as a part of the consideration, and to recover $200 in cash paid on the trade, and also to recover certain damages alleged to have arisen from special circumstances surrounding the alleged transaction. Upon the original trial, before a jury, Fulghum was given an instructed verdict in his favor, granting him all the relief he sought. The Court of Civil Appeals at Amarillo affirmed the judgment rendered by the district court upon that trial. 4 S.W.(2d) 280. A writ of error was granted by the Supreme Court, and this Section of the Commission rendered an opinion reversing the judgment of the Court of Civil Appeals at Amarillo, and remanded the case for another trial, upon the ground that Fulghum was not entitled, under the testimony, to an instructed verdict. 14 S.W.(2d) 812. Upon the second trial of the case, Fulghum again recovered a judgment based upon certain facts ascertained by a jury, which granted him substantial relief, and which, in effect, canceled the sale to the parcel of land, and gave him a judgment for the $200 purchase money, and also a judgment for $790 special damages. The Court of Civil Appeals at Dallas reversed the judgment of the district court, and remanded the case substantially upon the ground that the testimony, under the pleadings, was wholly insufficient to support the judgment for special damages, and that the testimony was conflicting as to the right of Fulghum to cancel the sale, and recover the $200. In other words, the judgment of the Court of Civil Appeals at Dallas was based upon the insufficiency of the testimony to support the judgment of the trial court. 37 S.W.(2d) 201, 203.

The theory of Clem is to the effect that Fulghum had agreed in writing with one Park to buy a tract of land 50 feet by 200 feet on Montreal street, being the first vacant lot 50 feet by 200 feet facing on Montreal street south of Tenth street, and that the allegations of Fulghum's petition are based on this written contract, whereas the uncontradicted testimony is that Fulghum accepted a deed from Clem to a lot described as 70.4 feet wide by 179 feet deep, which deed was not in accordance with the written contract, and which, having been accepted by Fulghum, showed that he had no right to rely on the written contract, and therefore no right to rescind, by reason of which the Court of Civil Appeals erred in remanding the case for another trial.

The theory of Fulghum, upon which he apparently must have based his right to sustain the two judgments rendered in his favor by the trial court, is to the effect that while he made a written contract to purchase the lot described as 50 feet by 200 feet on Montreal street, yet he was afterwards informed by the duly authorized agent of Clem, that Clem's lot, to which the written contract with Park referred, was 70.4 feet wide and 179 feet deep, in place of 50 feet wide and 200 feet deep, and that the written contract, by agreement, was canceled, and the deed was executed by Clem in pursuance of an oral agreement on the part of Fulghum to purchase a lot 70.4 feet wide and 179 feet deep, whereas as a matter of fact Clem only had the right to convey a lot 49.4 feet wide and 168 feet deep, and that Clem had knowledge of the fact that Fulghum intended to build a certain kind of house on this property, and after Fulghum had received the deed, which Clem had executed, he incurred certain expenses preparatory to building this house, in consequence of which he sustained special damages by reason of the fact that he afterwards discovered that Clem did not own the property conveyed to the extent of about 21 feet wide fronting on Montreal street.

The Court of Civil Appeals finds that there is no testimony under the allegations of Fulghum's petition, as a basis for this theory, and no testimony in support of it. We have reached the conclusion that the Court of Civil Appeals was correct in this contention, as well as in the contention that the testimony is conflicting as to the right of Fulghum to rescind. These being questions of fact, the Supreme Court has no authority to set aside the judgment of the Court of Civil Appeals, which remands a case on this ground, especially since we have concluded that a holding by the Court of Civil Appeals of no testimony is tantamount to a holding that the testimony is insufficient to sustain the judgment of the trial court. Fifth National Bank v. Iron City National Bank, 92 Tex. 436, 49 S. W. 368; Tweed v. Western Union Tel. Co., 107 Tex. 255, 166 S. W. 696, 177 S. W. 957; Marshburn v. Stewart, 113 Tex. 507, 254 S. W. 942, 260 S. W. 565; Gray v. Kaliski (Tex. Com. App.) 45 S.W.(2d) 157; Wilson v. Hagins, 116 Tex. 546, 295 S. W. 922; Electric Express and Baggage Company v. Ablon, 110 Tex. 235, 218 S. W. 1030; Wilson v. Freeman, 108 Tex. 121, 185 S. W. 993, Ann. Cas. 1918D, 1203; Pollock v. Houston & T. C. Ry. Co., 103 Tex. 69, 123 S. W. 408; Wallace v. Southern Cotton Oil Company, 91 Tex. 18, 40 S. W. 399; Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 36 S. W. 247, 37 S. W. 319; Choate v. San Antonio & A. P. R. Co., 91 Tex. 406, 44 S. W. 69; Lee v. I. & G. N. Ry. Co., 89 Tex. 583, 36 S. W. 63.

Fulghum, in his application for the writ of error, contends that the opinion of the Court of Civil Appeals holds differently upon the law of agency and the...