Foster v. Bennett

• Decision Date: 12 June 1915
• Docket Number: (No. 806.)
• Citation: 178 S.W. 1001
• Parties: FOSTER v. BENNETT et al.
• Court: Texas Court of Appeals

Page 1001

178 S.W. 1001

FOSTER v. BENNETT et al.

(No. 806.)

Court of Civil Appeals of Texas. Amarillo.

June 12, 1915.

Rehearing Denied October 23, 1915.

Appeal from District Court, Baylor County; Jo A. P. Dickson, Judge.

Action by R. G. Bennett and others against J. S. Foster and another. Judgment for plaintiffs, and defendant Foster appeals. Affirmed.

D. A. Holman and Glasgow & Kenan, all of Seymour, and Ocie Speer, of Ft. Worth, for appellant. Arnold & Taylor, of Henrietta, Leslie Humphrey, of Wichita Falls, Joe A. Wheat, of Seymour, and Sporer & McClure, of Jacksboro, for appellees.

HENDRICKS, J.

W. A. Bennett, R. G. Bennett, Arthur Power, and E. D. Power were the owners of 303 shares of stock in the Seymour Mill, Elevator & Light Company. On the 31st day of December, 1909, 110 of said shares were transferred to the appellant Foster, 90 shares to J. T. Cockrell, and 103 shares to C. W. Abbott. In the negotiations resulting in the transfer of all the stock to the parties mentioned in the amounts indicated, it seems that the trade with each of the three parties, calling for a transfer of the amount of stock to each, was conditioned by the vendors upon a transfer of the whole.

M. R. Fuller was the manager of this corporation, and prior to the change in ownership of the 303 shares W. A. Bennett had agreed with Fuller that, if the latter would make an acceptable disposition of his stock and interest in the mill, he would reserve and assign to the latter 20 shares of said stock. By the efforts of Fuller, Bennett, who resided in Memphis, Tex., and Foster, who lived in Seymour, were brought together, with the result that 100 shares of the Bennett stock were traded by the Bennetts to Foster for a one-fourth interest in the Lankford addition to Seymour, Tex., consisting of 140 acres; and in the trade Fuller, upon Foster's demand, assigned 10 shares of the 20 going to him as commission, in order to effectuate the trade. Abbott was unable to pay for his 103 shares, except the sum of $1,000, and, as a part of the consideration of the trade with Bennett, Foster became Abbott's surety upon the notes executed by the latter, said notes representing the greater part of the consideration for the Abbott stock, the said stock to remain with Bennett as additional security for the Abbott notes Foster asserts against this suit brought by the Bennetts upon the Abbott notes that his part of the trade was produced by the false representations of Fuller, the plaintiff's agent, alleging in the last answer filed by him that:

To "induce the sale * * * Fuller represented the market value [of the stock] at that time to be $1.14, on the face value, and that said corporation only owed from $7,000 to possibly $13,000, dependent upon liability for the Bellows note for $5,000, except the debt owing by it to the First National Bank [of Seymour], which he estimated to be about $23,000 or $24,000, and that it had bran, wheat, flour, solvent accounts, notes and money on hand sufficient to pay off the bank debt."

The following are all of appellant's assignments of error, which were numbered by appellant in accordance with the enumeration in the motion for new trial, and by us consecutively for convenience:

First. "The court erred in giving its special issues to the jury; and in refusing to give those requested by defendant, as shown in defendant's bills of exceptions Nos. 3 and 4."

Second. "Because the verdict of the jury is insufficient to warrant any judgment for either party, without resort to the testimony to aid the court in framing a judgment, which is contrary to law, and was rendered on special issues submitted to the jury which were not made issues in the pleading, and as to them should not be considered."

Third. "The judgment of the court is contrary to law and the evidence, in this, to wit [giving the subnumbers]:

"(1) Because when the verdict is founded upon special issues alone, the court cannot look beyond it to any fact apparent upon the record in aid of the judgment.

"(2) The court cannot look to the evidence on which the verdict was rendered in order to render judgment; but must look alone to the verdict.

"(3) A judgment resting partly on special verdict and partly on the court's conclusions of fact cannot stand."

Fourth. "The court erred in failing to submit as to whether Foster believed and relied upon the representations of Fuller, and was induced thereby to enter into said contracts, and then, refusing to submit the special issues, presented in writing by the defendant, with request to submit that issue to the jury."

Fifth. "The judgment is contrary to the law, because founded upon an erroneous assumption of law that the fact that Foster, after December 19, 1909, when Foster learned that there were more debts than represented and contracted for, and he, Cockrell, and Abbott by letter demanded a rescission, continued, in connection with other directors, to carry on the business, was an election to waive the fraud and affirm the contract between Abbott and plaintiff, on which Foster was only a surety."

Sixth. "The court erred in rendering its judgment, because the verdict showed that the jury made a mistrial on issues which precluded a judgment."

Seventh. "The failure of the jury to find on the issue of misrepresentations and fraud rendered all the other findings immaterial and insufficient to found a judgment upon."

The first assignment, without discussion, manifestly cannot be considered: If it could be considered in any event, every special issue submitted by the court would have to be improper, and every special issue requested to be submitted by the appellant would have to be good. The requested issues were refused as an entirety.

A part of the second assignment and all of the third are equally improper, and inappropriately urged. Whether considered as assignments or propositions — and they are of the latter nature — they are not sufficient specifications of error, and, as an abstract general presentation, are incorrect. Appellant's authorities to the effect that the trial court cannot look beyond the special verdict to aid the judgment were rendered prior to the adoption of article 1985 in 1897, and now, "upon appeal or writ of error, * * * an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment: Provided, there be evidence to sustain such a finding" — which, under appropriate conditions, extends to the trial court the power which appellant denies and would abridge.

The second specification of error in the second assignment, in effect that the judgment was rendered on special issues, not pleaded, will be noticed later.

As to the fourth assignment, complaining generally of the court's failure to submit whether Foster relied upon the representations, likewise complaining of the court's refusal to submit the same issue requested in writing by the defendant, the specific issue was requested, accompanied by a number of other issues, some of which were wholly immaterial as substantive "issues raised by the pleadings and the evidence in the case." Article 1984a. Some are mere submissions for a finding of evidence, and others were substantially embraced within the court's submission. They are also requested as an entirety and rejected as a whole. Hovey v. Sanders, 174 S. W. 1027. Neither are we able to find any exceptions to the court's action in refusing the issues requested. If embraced within Acts 33d Leg. c. 59, exceptions are required. If not so embraced, the general rule as to exceptions to preserve an erroneous action for the appellate court's consideration is necessary. Also see Railway Co. v. Cody, 92 Tex. 632, 51 S. W. 329.

As to the fifth assignment, of course, if the record were such that the judgment was required to be based upon the issue of ratification, and the evidence was not sufficient to sustain such issue, necessarily the judgment could not stand.

The sixth and seventh assignments are cognate, and are presented as propositions, and will be considered. The court submitted the following issue, upon the decision of which the jury were unable to agree:

"Did plaintiffs, or their agent, Fuller, falsely represent the true and real condition of the property of the Seymour Mill, Elevator & Light Company to the defendant Foster, at or prior to the time of the trade in question, as to the amount of indebtedness against said property and as to the amount of stock, products, notes, and accounts on hand?"

This was necessarily a material and decisive issue in the case, and should have been found, unless the submission of the following issue, No. 3, with the finding of the jury thereupon, renders the same immaterial:

Third Issue. "Did plaintiffs, or their agent, Fuller, submit to the defendant Foster, for his consideration, before said trade was made on December 31, 1909, a true statement showing the financial condition of said Seymour Mill, Elevator & Light Company, including a statement of all of its indebtedness and the amount of stock, products, notes, and accounts on hand? Answer: Yes; they did."

The court submitted, and the jury also found, the following issue:

"Did the plaintiffs or their agent, Fuller, give the defendant Foster, before and at the time said sale was made, free access and opportunity for him to examine the books of said company, and, if so, did he examine said books? Answer: As to first clause, Yes. As to second clause, No."

There are two statements in this record, one of date November 1, 1909, and another of December 31st, the date the trade was closed, each purporting to reflect, as upon the respective dates, the true condition of the Seymour Mill & Elevator Company as to its resources and liabilities, and their correctness is undenied in this record, except as to overvaluation of some of the property owned by said corporation. These statements, as exhibitions of indebtedness...