Huddleston v. Texas Pipe Line Co.
Decision Date | 26 February 1921 |
Docket Number | (No. 9472.) |
Citation | 230 S.W. 250 |
Parties | HUDDLESTON et al. v. TEXAS PIPE LINE CO. |
Court | Texas 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.
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:
In 1 Bigelow on Frauds, p. 483, § 4, it is said:
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:
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