Coleman v. Ammons, 14483

• Decision Date: 16 May 1952
• Docket Number: No. 14483,14483
• Citation: 249 S.W.2d 1014
• Parties: COLEMAN v. AMMONS et ux.
• Court: Texas Court of Appeals

Page 1014

249 S.W.2d 1014

COLEMAN v. AMMONS et ux.

No. 14483.

Court of Civil Appeals of Texas, Dallas.

May 16, 1952.

Rehearing Denied June 13, 1952.

Motion to Certify Overruled July 18, 1952.

Saunders & Thurmond, Tyler, for appellant.

L. F. Sanders, Canton, for appellees.

CRAMER, Justice.

Appellees have filed a motion for rehearing attacking our original judgment herein reversing and rendering the cause for appellant. A majority is now of the opinion that our original judgment was not correct and that the motion for rehearing should be sustained.

Appellees' trial petition, omitting heading and prayer, was as follows:

'(1) That by fraud, misrepresentation and over persuasion, the defendant did on or about August 4, 1949, cause the plaintiffs to make, execute and deliver to the defendant a promissory note in the amount of Three Hundred And Sixteen Dollars And Twenty Cents ($316.20) and payable in 36 monthly installments, providing among other things, that in case default was made in any one principal or interest payment the owner and holder thereof had the right and option to declare all of same due and to proceed to collect all of same as though it were due; that on the same month, day and year, the defendant, for the purpose of defrauding plaintiffs duly endorsed and transferred said note to Co-Operative Building & Loan Association of Tyler, Texas, a Texas corporation, who was a good faith purchaser and who after said plaintiffs had made two payments and learning that they had been defrauded and had executed said note after said labor and material had been misrepresented to them defaulted in said payments; the Co-Operative Building & Loan Association then brought suit in the County Court of Smith County, Texas, naming these plaintiffs as defendants and as a result of said suit said defendants were forced and compelled to pay over to, in cash, Co-Operative Building and Loan Association, the amount of Three Hundred and Thirty Dollars ($330.00), all of which said plaintiffs, as herein stated, were forced to pay and to suffer this damage because of the misrepresentation and fraud practiced on them by Coleman Insulating Company, its agent, servant and employee, while acting in the scope of his employment for Thomas C. Coleman, d/b/a Coleman Insulating Company. (2) Plaintiff further shows that the defendant, acting by and through its duly authorized agent, servant and employee came to Van Zandt County, and to the home of the plaintiffs and represented to plaintiffs, in said County, that they were in the insulating business, would completely insulate the home and business establishment of plaintiffs, but that plaintiffs insisted their home and business did not need insulating, but that said agent then represented and made a proposal, that and in a form, in which they proposed would completely prevent the presence and breeding of roaches, insects, mice, rats, spiders, and all other detrimental insects that usually hibernate, breed and remain in and about a home and business; that plaintiffs were persuaded to have said work done in Van Zandt County, Texas, and the same was done, by the defendants, in Van Zandt County, Texas, on land and premises located in Van Zandt County, Texas, and the plaintiffs allowed same to be done only after said agent had assured them that his company would, and did guarantee that said work and material would prevent the breeding and living of all insects and roaches, mice, as well as rats and all detrimental rodents; that as herein stated, said work was done and performed by Coleman Insulating Company, but that since said material and labor has been furnished and done, there has been no decrease in any of said insects and rodents but that they have multiplied and are in greater numbers than before said work and materials were furnished. (3) Plaintiffs further show that said cause as herein referred to, and as was filed by the Co-Operative Building and Loan Association, was filed and numbered in the County Court of Smith County, Texas, and numbered 7671, and that there was much humiliation and embarrassment to said suit and the plaintiffs have suffered damage to their character and reputation as a result of the fraud and misrepresentation practiced upon them by the defendant.'

The prayer was for $330, plus expense of defense, etc.

Appellee himself testified as to his residence at Edom, Van Zandt County, and as to what happened on the occasion of the signing of the contract of appellant as follows:

'Q. Let me ask you this, Mr. Ammons: You knew what insulation was before you took this contract and executed it, did you not-in a general sort of way? A. Yes, I had heard of insulation, but I didn't know what all it would do.

'Q. You knew it was insulation between the two walls of your home to help in the cooling and warming of your home? A. I knew that went with it.

'Q. You knew that wouldn't kill ants and roaches, didn't you? A. I did not.

'Q. There is nothing in the contract that said it would? A. No, I don't know that there was, but the man that sold it to me swore that it would, and I have plenty of witnesses that heard him say it.'

Ammons further testified that he did not get a copy of the contract at the time he signed it; that Mr. Coleman admitted to him that salesman who took the order worked for him, but denied responsibility for what the salesman did. Ammons also testified that Coleman, referring to the salesman, said: 'I have the laws hunting him, he is nothing but a crook.' Ammons was corroborated as to his conversations as to the salesman's representation and guarantee that it would insulate the house against rats, roaches, insects and mice, by his wife and four other disinterested witnesses who heard the conversations. One of the disinterested witnesses, the Justice of the Peace at Edom, testified:

'Q. What did he tell Mr. Ammons? A. He told Mr. Ammons that it would absolutely deaden the sound, make it cooler and prevent and kill all insects.

'Q. Was anything said about rats? A. He said not anything, nothing would go through it or be in there at all.

'Q. It would cut them all out? A. Yes.

'Q. Did he say it would kill them or knock them out? A. Said it would kill them, or they wouldn't be there.

'Q. That was before any work was started? A. Yes. Mr. Ammons told him the main thing he wanted to get rid of was the mice and insects, and ants that come up through here.'

Under such record, appellant Coleman was charged with the representations of his salesman, and sustained the court's findings of liability against Coleman, at least for nominal damages for fraud.

In 20 Tex.Jur. 115, sec. 77, the rule in Texas is correctly stated as follows:

'Nature and Form of Remedy.-A person who has been defrauded has alternative remedies. He may stand to the bargain and recover damages for the fraud in an action at law, or, resorting to equity, he may rescind the contract, return the thing bought and receive back what he paid; or, in a proper case, he may retain what he has received, and, waiving the fraud, bring his action, based on the contract, for damages sustained by reason of its breach; or he may set up the fraud by way of defense when sued on the contract or transaction. In some circumstances equity will grant appropriate relief by reforming the instrument to accord with the intent of the parties or by declaring a trust exmaleficio.' See, also, 20 Tex.Jur., sec. 78, p. 117, id., and Wilson v. Jones, Tex.Com.App., 45 S.W.2d 572, Commission of Appeals (holdings approved by our Supreme Court).

Appellant also asserts that there was insufficient allegation or proof of damages. The evidence shows the insulation to be worthless for the purpose for which Ammons bought it, to wit, that it was proper for and would accomplish the insulation of his building against insects, ants, mice, etc. The trial court found damages by reason of the fraud of the salesman of $275. Coleman, under his contract, was to receive $316.20 plus interest, etc., for the job and the innocent purchaser of said note received some $330 from the Ammons in payment thereof. The material question here is whether the evidence was sufficient to support the trial court's findings and judgment for $275. If so, the judgment must be affirmed.

Under the record, the insulation involved in the contract, became a part of Ammons' real property and good only for a purpose for which he had no need of it. The record is bare of testimony that it could be removed or that it added to the value of the property. Accepting the testimony of Ammons and his witnesses as true, as found by the trial court, it was clear that the insulation was of little or no value to him, and sustained the court's finding on the amount of damages ($275) suffered by Ammons.

For the reasons stated, the motion for rehearing is granted, our former judgment set aside, and the judgment below is now affirmed.

YOUNG, J., concurs.

BOND, C. J., dissents.

YOUNG, Justice (concurring).

Plaintiffs, when approached by defendant's agent, stated among other things that their principal concern in having house insulated was the elimination of rats, mice, bugs and insects, whereupon the agent verbally guaranteed that the system to be installed would absolutely eradicate all such rodents and pests and dffinitely prevent their return to the premises. In reliance on such representations, they say, the contract was signed and installation completed; and the trial court has established the falsity of such statements inducing contract and payment of consideration.

The writing does not cover any warranties of any kind; hence the principle invoked in Distributors Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47, does not apply. However it does include the proviso: 'It is understood that the entire contract is contained in this agreement and that no verbal or otherwise understanding shall be binding on the contractor'; which recital, it is argued, conclusively estops the house-owner...