Haddaway v. Smith

• Decision Date: 28 November 1923
• Docket Number: (No. 2216.)
• Citation: 256 S.W. 965
• Parties: HADDAWAY v. SMITH et al.
• Court: Texas Court of Appeals

Page 965

256 S.W. 965

HADDAWAY v. SMITH et al.

(No. 2216.)

Court of Civil Appeals of Texas. Amarillo.

November 28, 1923.

Rehearing Denied January 2, 1924.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Action by Morton J. Smith and another against Rochester Haddaway. From judgment overruling his plea of privilege, defendant appeals. Affirmed.

R. A. Sowder, of Lubbock, and McLean, Scott & McLean, of Fort Worth, for appellant.

G. E. Lockhart, of Tahoka, for appellees.

HALL, C. J.

The appellees, a firm of brokers, sued appellant in the district court of Lubbock county, alleging that appellant resided in Tarrant county; that he had listed certain real estate, which he owned in Bailey county, with them for sale, agreeing to pay them a commission of 7½ per cent. on $30 per acre, for selling said land or securing a purchaser for same. They allege that they sold parts of said land to certain purchasers residing in Lubbock county; that the purchasers entered into a contract with appellant in virtue of which they were to acquire title to said land by cash payments made at the time the contracts were executed, and further payments to be made on the 1st day of January, 1921. The contracts stipulate that if said payments are not made on the 1st day of January, 1921, the contracts shall become null and void, and all payments theretofore made are forfeited to the said Rochester Haddaway. The plaintiffs further allege that Haddaway "formed a scheme in his mind to defeat the purchasers of said property out of the cash payments they had made thereon and to defeat these plaintiffs out of commissions they had earned by reason of the sale of said land; that the defendant in Lubbock county, Tex., for the purpose of carrying out his scheme to defraud, cheat, and wrong these said purchasers, and to defeat the plaintiffs out of the commission they had earned, falsely and fraudulently represented to these plaintiffs and to each and all of said purchasers that while said contract provided that payments were to be made in Fort Worth, Tarrant county, Tex., that he (Rochester Haddaway) would come to Lubbock on the 1st day of January, 1921, and would accept payment on said contracts at Lubbock, Tex., and deliver said deed to said purchasers and pay plaintiffs their commission at Lubbock, Tex.; that said representations were false and fraudulent and were made for the sole and only purpose of defrauding the plaintiffs out of their commissions and defrauding the parties to said contracts out of the cash payments that they had made; that the said Haddaway had no intention of coming to Lubbock to close said contracts, as he promised and agreed to do and induced these plaintiffs and the purchasers of said lands to believe and rely on his statement that he would come to Lubbock and close said contracts in Lubbock county, Tex., and accept the money on said contracts there instead of at Fort Worth, Tarrant county, Tex., and that these plaintiffs believing and relying upon the statements so made by Haddaway in Lubbock county, Tex., made no effort to have said purchasers comply with said contract by paying the money due thereon in Fort Worth, Tarrant county, Tex.; that Haddaway promised plaintiffs and the purchasers under said contracts that he would be in Lubbock, Lubbock county, Tex., on the 1st day of January, 1921, to receive the second cash payment on said land and to deliver said purchasers deeds therefor; that in furtherance of his scheme to cheat, wrong, and defraud said purchasers, and without any notice to either the purchasers or these plaintiffs, he terminated and forfeited said contracts on the 1st day of January, 1921, because the purchasers of said land failed to comply with said contracts by paying the second installment of purchase money under said contracts at Fort Worth, Tarrant county, Tex. Haddaway filed his plea of privilege to...