Costello v. Sample, 5036
| Decision Date | 19 August 1971 |
| Docket Number | No. 5036,5036 |
| Citation | 470 S.W.2d 446 |
| Parties | James COSTELLO, Appellant, v. J. Herman SAMPLE, Appellee. |
| Court | Texas Court of Appeals |
Law Offices of Christopher M. Weil, Ronald A. Dubner, Dallas, for appellant.
Neal C. De Shazo and Earl Luna, Dallas, for appellee.
Costello, the appellant, brought this action against the appellee, Sample, to recover on a note in the principal amount of $100,000, which was executed by Sample and payable to Costello. J. C. Adams intervened as an alleged assignee of a $15,000 interest in the note. Sample defended on the grounds that there was no consideration for the note, and that he was fraudulently induced to execute it. Trial was to the court without a jury and resulted in a judgment that Costello and Adams 'take nothing.' Adams did not appeal. We affirm .
In 1966 Costello learned that John A. Erhard and others owned a 148-acre tract of land in Dallas County which they desired to sell. He also learned that it was very probable that, in the near future, a portion of the land would be bought or condemned for highway purposes. Negotiations between Costello and Sample, and Costello and the owners' representative, led to Sample's purchase of the property from Erhard and others on March 17, 1967. As part of the consideration, Sample executed a vendor's lien note, secured by deed of trust, payable to the grantors in the amount of $657,000. On that same day Sample executed the note made the basis of this law suit.
Answering Costello's petition for recovery on the note, Sample alleged that the note was 'without consideration;' that, to induce the execution of the $100,000 note, Costello represented to Sample that Costello, in behalf of Sample, was presently advancing that amount of money to John Erhard and others toward purchase of the 148 acres, but that the statement was false; and that as an inducement to him to sign the note, Costello represented that if the property should not have been condemned for highway purposes by the time the first payment was due on the vendor's lien note, one year from the date of purchase by Sample, then Costello would 'assume the full amount of the deed of trust note' and would pay Sample $120,000 plus ten percent interest; that these representations were false; that Costello knew they were false when they were made; that Sample did not know they were false; that he relied upon them; and that he 'would not have executed any agreement with the plaintiff had he known same to be false.'
The trial court made and filed findings of fact numbered as follows: (9) and (10), that Costello represented to Sample that Costello was lending Sample $100,000 'as part of the down payment of the purchase price of the land involved,' and, but for such representation, Sample would not have signed the note; (15) that, but for the representation, Sample would not have purchased the property; (18) that the representation was false, and Costello knew it was false when he made it; (16) that Sample did not know the representation was false when it was made; (19) that Sample relied upon the representation; (20) that Sample would not have executed any agreement with Costello if he had known that the representation was false; (21) that there was no consideration for the execution of the note; and (3) that Costello represented to Sample that Costello had a contract to purchase the property from Erhard and others for $880,000.
Appellant contends that the findings recited above are against the great weight and preponderance of the evidence. We do not agree.
Viewed most favorably toward the trial court's findings, the evidence and its inferences support the following factual...
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