Harding-Gill Co. v. Borchardt

• Decision Date: 09 June 1926
• Docket Number: (No. 7601.)
• Parties: HARDING-GILL CO. v. BORCHARDT.
• Court: Texas Court of Appeals

285 S.W. 698

HARDING-GILL CO. v. BORCHARDT.

(No. 7601.)

Court of Civil Appeals of Texas. San Antonio.

June 9, 1926.

Appeal from District Court, Willacy County; A. M. Kent, Judge.

Suit by the Harding-Gill Company against R. M. Borchardt. From a judgment for defendant on the original cause and on his cross-action, plaintiff appeals. Reversed and remanded.

Davis E. Decker, of Raymondville, for appellant.

H. G. Hart and J. P. Cogdell, both of Raymondville, for appellee.

FLY, C. J.

Appellant sought to recover the sum of $2,397.23 of appellee, the same being evidenced by two promissory notes, and to foreclose a vendor's lien on 40 acres of land, being all of lot 9 in section 3, of the Raymond-Hallam subdivision in Willacy county. Appellee pleaded failure of consideration in that appellant had, as an inducement to purchase the land, agreed to furnish artesian water sufficient for appellee's stock and his domestic uses, but failed and refused to furnish the same, and alleged that the land without the water was worth only $40 an acre, but with the water furnished was of the value of $100 an acre, the sum appellee agreed to pay for the same. He pleaded a cross-action of $2,400, being $60 an acre on the land, and asked that he recover the sum of $500 against appellant, being the difference between the amount of the notes and $2,400. The cause was submitted to a jury on special issues, and the court rendered judgment canceling the notes and lien, that appellant take nothing by its suit, and that appellee recover $500 from the partners.

Appellee bought the 40 acres of land from appellant on December 16, 1920, through a contract of sale in which, in addition to binding themselves to convey the land, it was agreed to convey "also a pro rata interest in an artesian well, windmill, tank and pipe line to furnish all water needed for stock and domestic use, according to the survey and recorded plat of the same." That provision was not carried into the deed to the land which was afterwards delivered to appellee. A well was dug which had an abundant supply of water. It was salt water. Appellee refused to accept the water on account of its salt taste. The water was not good for "stock and domestic use." The water was valueless for stock and domestic use. The land was shown by the uncontroverted evidence to be worth not more than $40 per acre without water, but there was testimony from which a jury might have found that the land with water was worth less than $100...