Gibbens v. Bourland

• Decision Date: 28 February 1912
• Citation: 145 S.W. 274
• Parties: GIBBENS v. BOURLAND.
• Court: Texas Court of Appeals

145 S.W. 274

GIBBENS v. BOURLAND.

Court of Civil Appeals of Texas. San Antonio.

February 28, 1912.

Rehearing Denied March 27, 1912.

Error to Uvalde County Court; T. M. Milam, Judge.

Action by F. G. Bourland against G. N. Gibbens and another. There was a judgment for plaintiff, and defendant Gibbens brings error. Affirmed.

Love & Williams, for plaintiff in error. John W. Hill, for defendant in error.

FLY, J.

Defendant in error sued G. B. Ketchum for the sum of $390, alleged to be due as a balance on the purchase money for a certain race horse sold by defendant in error to said Ketchum, and joined plaintiff in error in the suit. Neither of the parties appeared, and judgment by default was taken against both for the amount of the debt. The judgment was rendered on May 16, 1911, and on June 21, 1911, an application was filed by plaintiff in error for a writ of error to this court, and the proper bond was given.

The petition, on which the judgment by default is based, alleged that the horse was sold by Bourland to Ketchum for $500, on which sum he paid $110, and that part of the petition alleging the liability of Gibbens is as follows: "Plaintiff says: That the defendants, Ketchum and Gibbens, inspected, examined, and tested the said horse, and after so doing agreed that he was satisfactory, and in all things accepted him for the stipulated price of $500. That said sale was partly for cash and partly on a credit, and the plaintiff at said time was a stranger and unacquainted with the defendant Ketchum, and refused to consummate the sale on said terms; but the defendant Gibbens, who was well known to plaintiff, urged the plaintiff to make the sale to the said Ketchum, representing to plaintiff at the time that it was a good sale, and that Ketchum was a thoroughly reliable and trustworthy man, and would pay his debts promptly, and in all things live up to his contract. That believing and relying upon the representations of the said Gibbens so made to him, and believing that the said Ketchum would pay him as per their contract, the plaintiff here now alleges that the representations of the said Gibbens were untrue, and plaintiff was deceived thereby, and was induced to part with his horse, with a balance of $390 due on the purchase price thereof, and but for the said representations and assurances of the said Gibbens he would not have so parted with his horse; and plaintiff alleges that because of the said representations of said Gibbens he has been and is damaged in the sum of $390, with 6 per cent. interest thereon since April 22, 1910, and that said Gibbens is liable to plaintiff therefor equally with the defendant Ketchum." Those were all of the allegations contained in the petition in reference to the liability of plaintiff in error, and the only issue is: Do they form a sufficient basis for a judgment by default?

This being a writ of error, sued out in order to obtain a review of the judgment, is not a collateral, but a direct, attack on the judgment. Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325. It has been held that in a collateral attack a judgment will not be void, because it is founded on a petition subject to general demurrer. Moore v. Perry, 13 Tex. Civ. App. 204, 35 S. W. 838. But on appeal or writ of error a judgment unsupported by pleadings good as against a general demurrer will be set aside. Hall v. Jackson, 3 Tex. 305; Johnson v. Davis, 7 Tex. 173; Kimmarle v. Railway, 76 Tex. 686, 12 S. W. 698; Johnson v. Dowling, 1 White & W. Civ. Cas. Ct. App. § 1091. The petition does not allege that Gibbens was the agent of Ketchum, that he was interested in the purchase of the horse, or, in terms, that he colluded or conspired with Ketchum to purchase the horse; but the allegation merely is that Gibbens vouched for the credit and financial standing of Ketchum, and stated that Ketchum was a thoroughly reliable man, and would pay his debts promptly, and that, believing and relying on the representations of Gibbens, Bourland consummated the trade. It was further alleged that the representations were untrue, and that Bourland was deceived thereby, and induced to part with his property. The petition is very defective in its allegations and would not withstand an attack by special exception, but under fire from a general demurrer every intendment must be resolved in favor of it. In passing upon the petition as tested by the general demurrer, the court should consider everything as properly alleged which by reasonable construction is embraced within the allegations contained in the petition. Martin v. Brown, 62 Tex. 467; Railway v. Morris, 68 Tex. 49, 3 S. W. 457; Pennington v. Schwartz, 70 Tex. 211, 8 S. W. 32; Railway v. Hinzie, 82 Tex. 623, 18 S. W. 681.

Applying the foregoing rule to the petition in this case, the allegation that Gibbens knew his representations were untrue carried with it the intendment that it was untrue; that Gibbens knew that in fact and in truth Ketchum was not reliable and would not pay his debts or live up to his contracts. Such allegations, coupled with the others made in the petition, would, we think, make Gibbens liable for the debt that Ketchum would not pay. The only Texas case cited by defendant in error is one in which the false representations were made by an agent, and the court held the principal bound by the representations, and there are some authorities cited and approved in that case (Cleghon v. Barstow Irrigation Co., 41 Tex. Civ. App. 531, 93 S. W. 1020) that are decidedly in point. One is the case of Weatherford v. Fishback, 3 Scam. (Ill.) 170, in which an officious intermeddler, without deriving any benefit to himself from the false statements, pointed out land as being that which a certain person wanted to sell, when it was not, and the intending purchaser relied on what he said, and bought land, but not that pointed out. The Illinois court held that the intermeddler was liable, holding: "The ground of...