Hammel v. Benton

• Decision Date: 20 December 1913
• Citation: 162 S.W. 34
• Parties: HAMMEL v. BENTON et ux.
• Court: Texas Court of Appeals

162 S.W. 34

HAMMEL v. BENTON et ux.

Court of Civil Appeals of Texas. Amarillo.

December 20, 1913.

Appeal from District Court, Gray County; L. C. Barrett, Special Judge.

Action by J. T. Benton and wife against H. J. Hammel and another. From a judgment for plaintiffs, defendant Hammel appeals. Affirmed.

R. M. Vaughan, of Hillsboro, and Ewing & Dial, of Miami, for appellant. Crudgington & Works and Lloyd Fletcher, all of Amarillo, for appellees.

HALL, J.

Appellee filed this suit against H. J. Hammel and G. M. Counts on the 31st day of July, 1912, for the purpose of rescinding a trade, and prayed in the alternative for damages.

In an amended petition, plaintiff alleged in substance that appellee J. T. Benton entered into a written contract with H. J. Hammel and G. M. Counts, whereby plaintiff agreed to convey to the defendants section 85, block M—2, in Gray county, Tex., together with the rents from the wheat and oat crops thereof for the year 1912 (except a block of 40 acres), also a half interest in a secondhand Deering Header, and other personal property, and in consideration of said conveyance the defendant Hammel agreed to convey to plaintiff sections 9, 10, 15, and 22, in block B—12, free school land in Winkler county, Tex., and in addition thereto to pay plaintiff $3,000 for said property. It was further alleged that defendant agreed to pay $2,000 for immediate possession of plaintiff's property in Gray county; that in compliance with the contract the said Hammel, on or about the 2d day of April, 1912, conveyed to the said Benton the land in Winkler county, and on or about the 15th day of April Benton conveyed to Hammel the Gray county property, and in connection therewith Hammel caused to be paid to plaintiff $1,130 in money, and executed vendor's lien notes against said section 85 aggregating $1,870, making the total difference of $3,000; that Counts was the agent of Hammel in the trade; at the time of the exchange and transfer of property plaintiff resided in Gray county, about 350 miles from Winkler county; that he was wholly ignorant of land values in that vicinity; that defendant Counts accompanied plaintiff, Benton, from Gray county to Winkler county, where, together with Hammel, plaintiff, Benton was shown the land; that Counts and Hammel took plaintiff to a certain stake in Winkler county which defendants represented to be the center or common corner stake of all four of said sections, and that they represented to plaintiff that four sections lay in a solid body, and in the form of a square, two miles each way; that the north line of said four sections was located about one-fourth to one-half of a mile north of the house located on the land, and some distance south of a range of sand dunes extending east and west across the neighborhood, and also in pointing out to plaintiff the four sections of land, as they lay on the ground, included certain desirable lands of a better grade than any other included in said sections conveyed to plaintiff by Hammel; that plaintiff was ignorant of the actual location of said four sections; that defendants knew this fact, and that plaintiff was further wholly dependent upon defendants for information in regard thereto; that in truth and in fact said four sections of land did not lay in a square; that sections 10, 15, and 22 formed a rectangle, extending three miles from north to south, and one mile from east to west, and section 9 joined section 10 on the west, whereby said land lay in the form of an inverted L or figure 7, being two miles across the north end, and three miles on the east side; that about one-half of section 10 and one-fourth of section 9 was in sand dunes and mounds, and that the same was practically worthless; that section 16, block 12, of said land, which was not conveyed to plaintiff, and which lies in the L made by the west line of section 15, the south line of section 9, and which contained some of the best land pointed out by defendants to plaintiff, as being a portion of the land sold, was not at all owned by said defendants, or either of them; that the defendants were with plaintiff upon section 16, block 12, of said land, and stated and represented to plaintiff that said section was a part of the four sections of school land proposed to be traded to plaintiff; that section 22, which was pointed out by the defendant to plaintiff, which lies south of section 15, was largely made up of sand dunes, and mounds, and rock points, and is much poorer and cheaper land than section 16; that at the time of the making of said trip of inspection the defendant Counts claimed to be in a great hurry to go to Hale county to look after his children, claiming that his wife had recently died, and urged plaintiff to close said trade without taking time to investigate said land values, or inquiring as to the same in that neighborhood; that, in order to accommodate the said Counts, plaintiff did close said deal without taking time to inquire as to land values, which otherwise he would have done; that on said inspection trip defendant represented to the plaintiff that said land which they were selling was of the value of more than $5 per acre bonus above what was due the state of Texas, and that the plaintiff had reposed the greatest confidence in defendants, and each of them, in regard to the statements made concerning the desirability, location, and the price of said lands to the state; that said land contained the roots and turf of wild alfalfa, which grew up in the spring and made the most desirable pasture; that the defendants also represented that about two weeks prior to the date of said trade surveyors had been down over a portion of said land for the purpose of surveying out a prospective railroad, and that arrangements were being made for the building of same, which would greatly enhance the value of the land. Plaintiff alleges that in truth and in fact no surveyors had been over said land, and no arrangements had been made for building any railroad. It is further alleged that the defendants represented that the soil of said land was fertile, was from two to six feet deep, and very productive, and that the soil rested upon a clay foundation; that in truth and in fact said land was not fertile, and the soil not of the depth represented; that defendant represented to plaintiff that there was not exceeding 200 acres of sandy land on the entire tract, while in truth and in fact about 1,000 acres of such land was practically worthless; that the value of the land sold by defendant to plaintiff did not exceed $1 per acre bonus above the amount due the state; that it did not lie in a square, but in an L shape; that section 16 was not included in the sale, and that in the absence of any prospective railroad the shallowness, unfertility, nonproductiveness of the soil, and the injured condition of section 22, by reason of the cattle passing over and across it frequently, reduced the value of said land very greatly; the land as actually pointed out as covered by said trade would not exceed $2 per acre bonus above what was due the state, and that plaintiff's land in Gray county at the time of said deal was reasonably worth $25 per acre; that defendants represented to plaintiff that there was not exceeding an average of $2 per acre due the state of Texas for said land, and that the deal was entered into upon that basis; that in truth and in fact there was due the state of Texas $4.25 per acre on sections 9 and 10, and $3.25 on sections 15 and 22, or an average of $3.88 per acre; that, if plaintiff had known the true form in which said land lay, the true amount due the state, the market value thereof, the nature, kind, and condition of the soil, he would not have made said deal; that he was induced to make the trade by the false and fraudulent representations above set out, and by reason thereof the title to their property in Gray county, together with the rents and personal property, has never passed from him.

It is further urged that, in addition to the frauds and representations above set out, there also entered into the making of said contract a mutual mistake as to the amounts to which plaintiff was entitled, in this: That at and prior to the execution of the written contract of sale, in their negotiations in regard to the exchange of property, it had been agreed that plaintiff's Gray county land should be estimated in the trade at $25 per acre, a total of $16,000, and that said items of personal property and said grain rents were to be figured in with said land at that price; that said Winkler county land should be figured in at $5 per acre, or a total of $12,800; that, deducting the sum of $3,450, the amount of indebtedness against plaintiff's land, would make the net value some $12,550, or practically the same as said bonus price of said Winkler county land, and, figured at this price, defendant Hammel would pay $3,000 for grain rents, personal property, etc., which would be done by the payment of a note to the bank of Miami, for $630; that they should pay plaintiff $500 in cash, and execute three notes for $633.33 1/3 each, which makes a total of $3,000 difference; that the immediate possession of the Gray county land carried with it plaintiff's dwelling house, about 150 acres of land in cultivation, together with pasture lands, and plaintiff should have $2,000 additional, or a total net consideration of $17,550. It was further alleged that they agreed all said stipulations should be reduced to a written contract which should contain all matters agreed upon; that defendants...