Huddleston v. Texas Pipe Line Co.

Decision Date26 February 1921
Docket Number(No. 9472.)
Citation230 S.W. 250
PartiesHUDDLESTON et al. v. TEXAS PIPE LINE CO.
CourtTexas Court of Appeals

Appeal from Tarrant County Court; W. P. Walker, Judge.

Action by the Texas Pipe Line Company against Dr. W. C. Huddleston and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Ocie Speer and J. W. Estes, both of Fort Worth, for appellants.

Lawther & Pope, of Dallas, and McLean, Scott & McLean, of Fort Worth, for appellee.

BUCK, J.

This suit was instituted in the county court of Tarrant county for civil cases by the Texas Pipe Line company against Dr. W. C. Huddleston and Sheriff Sterling P. Clark, to vacate a judgment rendered in the same court in cause No. 16684, in which Dr. Huddleston was plaintiff and the Texas Pipe Line Company defendant, and in which a judgment was rendered for plaintiff on July 10, 1919. The plaintiff in the instant suit prayed for an injunction restraining defendant from enforcing said judgment. The grounds upon which plaintiff sought to vacate the judgment in cause No. 16684 was that Dr. Huddleston's attorney, J. W. Estes, had promised the attorney of the Texas Pipe Line Company to notify him of the setting of the case, and that the cause was set in the county court and judgment rendered without any notice to the attorney of the Texas Pipe Line Company, and contrary to an agreement between counsel for the respective parties.

The cause was submitted to a jury upon special issues, and judgment was entered thereon in favor of the plaintiff, appellee here, vacating the judgment of July 10, 1919, and making permanent the injunction theretofore issued.

The jury found the following facts:

(1) That J. W. Estes, attorney for Dr. W. C. Huddleston, prior to July 10, 1919, advised Harry P. Lawther, attorney for the Texas Pipe Line Company, that he (Estes) would keep Lawther advised as to the setting of the case of Huddleston v. Texas Pipe Line Company in the county civil court of Tarrant county, and that he (Estes) would notify Lawther at Dallas of any setting of the case in the county court in time for the said Lawther to secure his witnesses and be present at the trial.

(2) That Lawther believed and relied upon such representations by Estes.

(3) That Lawther did not know of the setting of the case for July 10, 1919, at any time prior to his being advised of an execution having been issued on the judgment taken.

(4) That Lawther abstained from taking other means of informing himself as to the setting of said cause by reason of the reliance on the promise made by Estes.

(5) That Estes did not on June 30, 1919 direct and have written and direct to be mailed a letter advising Lawther of the setting of the case for July 10, 1919.

(6) That Lawther exercised ordinary care to look after and keep informed with reference to the setting of the case of Huddleston v. Texas Pipe Line Company.

Appellants' first assignment of error is that the court erred in overruling defendant's special exception, as follows:

"Specially excepting to plaintiffs' first amended original petition, these defendants say the same is insufficient in this, that said petition shows that any and all statements, representations, or promises made by counsel for defendant W. C. Huddleston, in cause No. 16684, against Texas Pipe Line Company, were promises with respect to things to be done in the future, and as such could not be fraudulent so as to form the basis of an action, and said petition contains no allegation that said promises were at the time deceitfully made, and that said counsel did not at the time intend to keep and perform the same, and of this exception they pray the judgment of the court."

That a promise made in good faith to do or not to do a thing in the future, even though such promise be not kept, cannot form the basis for an action for fraud, is thoroughly well settled in the authorities. The only question is whether or not such principle is applicable to a proceeding like this. In Sperry v. Sperry, 103 S. W. 419, by the Dallas Court of Civil Appeals, in an opinion by Judge Bookhout, the following is said:

"Appellant alleges, in substance, that she was prevented from attending the trial of the divorce suit because appellee promised her that, if she would stay away, he would withdraw the charge of adultery contained in his petition filed in said suit; that he would not ask for the custody of their minor child, but would leave the child with appellant's mother permanently, so that she might see the child at any time; that he would deed to her her interest in the land they owned, and give to her her part of the personal property; that she believed and relied upon his promises, and was misled and deceived thereby, and but for them she would have asserted her rights in the divorce suit. These allegations relate to things to be performed by the appellee in the future, and it has been held that a promise to perform some act in the future, although made by one party as a representation to induce the other to enter into a contract, will not amount to fraud in legal contemplation. Bigham v. Bigham, 57 Tex. 238. We think this principle is applicable to the promises made by plaintiff in the divorce suit to defendant therein. It is not charged that these promises were made with a design to cheat and deceive appellant, and that appellee had no intention at the time of keeping or performing them."

In 1 Bigelow on Frauds, p. 483, § 4, it is said:

"The general rule in regard to promises is that they are without the domain of law unless they create a contract, and that, when they create a contract, a breach gives to the injured party simply a right of action for damages, and not a right to treat the other party as guilty of fraud. But that proceeds upon the ground that to fail to perform a promise is no indication that there was fraud in the transaction. There may however have been fraud in it; and this fraud may have consisted in making the promise with intent not to perform it. To profess an intent to do or not to do, when the party intends the contrary, is as clear a case of misrepresentation and of fraud as could be made. A promise is a solemn affirmation of intention as a present fact."

In Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, an interesting discussion is given of this question. In that case no exception was interposed as to the sufficiency of the allegations as formal averments of fraud, and of the fact constituting the same. See, also, McFarland v. McGill, 16 Tex. Civ. App. 298, 41 S. W. 402; Jones Lumber Co. v. Villegas, 8 Tex. Civ. App. 669, 28 S. W. 558; N. Y. Life Ins. Co. v. Miller, 11 Tex. Civ. App. 536, 32 S. W. 550; 12 R. C. L. p. 486, § 183.

But the majority conclude that the strict equity rule, as to the sufficiency of the pleading in order to warrant relief from a contract induced by false promises, should not apply in a case like this, which deals with a matter of procedure. In the case of Hickman v. Swain, 210 S. W. 548, this court reversed a judgment of the trial court denying to plaintiff relief from a judgment obtained at a former term of the court, and said:

"The motion to vacate the order of dismissal is in the nature of a bill in equity, and, as said by our Supreme Court in the case of Brownson v. Reynolds, 77 Tex. 256, 13 S. W. 986, which was likewise a suit to set aside a judgment rendered at a former term of court: `It is also a fixed rule that a court of equity will not interfere to set aside a judgment and grant a new trial except upon a showing of strict diligence in the presentation of the cause, and upon proof that after doing all that such diligence required to be done he had been deprived by fraud, accident, mistake, or other uncontrollable circumstance of the opportunity of properly presenting his case upon the trial.' And in the course of the same opinion the court quoted with approval the following from Vardeman v. Edwards, 21 Tex. 737:' In general, where it would have been proper for a court of law to have granted a new trial, if the application had...

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5 cases
  • Texas Employers' Ins. Ass'n v. Pierce
    • United States
    • Texas Court of Appeals
    • 16 Junio 1923
    ...that the policy is narrower in its terms than is contemplated by the act, the court may assume that it is not. Huddleston v. Texas Pipe Line Co. (Tex. Civ. App.) 230 S. W. 250. The third assignment of error complains of the introduction in evidence of a certain exhibit attached to the depos......
  • Price v. Yellow Pine Paper Mill Co.
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    ...in the absence of special authority from the board of directors. The Fort Worth Court of Civil Appeals, in Huddleston et al. v. Texas Pipe Line Co., 230 S. W. 250, refused to follow Producers' Oil Co. v. Green, and we find ourselves unable to agree with the conclusions reached by the majori......
  • Marsh v. Tiller
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    • 24 Diciembre 1925
    ...on its merits. 15 R. C. L. 765, and authorities there cited; 34 C. J. 470, 473, and authorities there cited; Huddleston v. Texas Pipe Line Co. (Tex. Civ. App.) 230 S. W. 250; Jones v. Wootton (Tex. Com. App.) 228 S. W. 142; Wootton v. Jones (Tex. Civ. App.) 204 S. W. 237; Hester v. Baskin (......
  • Independence Indemnity Co. v. Polk
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    ...that the policy is narrower in its terms than is contemplated by the act, the court may assume that it is not. Huddleston v. Texas Pipe Line Co. (Tex. Civ. App.) 230 S. W. 250." That court further held that it must be kept in mind that policy in such case is in the possession and control of......
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