Huffmaster v. Toland

• Decision Date: 11 April 1923
• Docket Number: (No. 2705.)
• Citation: 250 S.W. 468
• Parties: HUFFMASTER et al. v. TOLAND.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

250 S.W. 468

HUFFMASTER et al. v. TOLAND.^*

(No. 2705.)

Court of Civil Appeals of Texas. Texarkana.

April 11, 1923.

Rehearing Denied April 26, 1923.

Error from District Court, Kaufman County; Joel R. Bond, Judge.

Suit by Mrs. Cassie Toland against Ross Huffmaster and another to cancel an instrument. Judgment for plaintiff, and defendants bring error. Affirmed.

This was a suit by defendant in error, Mrs. Cassie Toland, against plaintiffs in error, Ross Huffmaster and J. F. Mulkey, to cancel instrument in writing executed by Mrs. Toland, dated August 18, 1919, in which it was recited that Mrs. Toland had employed Huffmaster, an attorney at law, to represent her in the institution and prosecution of a suit against her husband (J. J. Toland) for a divorce, "and for the recovery of her interest in any and all property she was entitled to recover from the said J. J. Toland," and whereby (to compensate him for the services he was to render) she agreed to pay Huffmaster $50 in cash and conveyed to him an "undivided one-fourth interest in and to any and all real property, personal property, and money" that he recovered for her.

It appeared from allegations in Mrs. Toland's petition that she and J. J. Toland had been married 30 years at the time they separated, August 15, 1919, and that during the marriage they had acquired, and when they separated owned, 180 acres of land and other property, worth altogether $20,000. Mrs. Toland alleged in said petition that at the time she executed the instrument in question she was "very poorly informed about her rights, and very poorly informed about what would be a reasonable fee to pay him" (Huffmaster) for representing her in the suit. She alleged that Huffmaster, "knowing that she was ignorant of what would be a reasonable fee to represent her," and "that she must and would rely upon him to fix a reasonable fee with her," fraudulently represented to her "that the recovery of her property rights would be very difficult and a hard case," and that $50 in cash and a one-fourth undivided part (worth, she alleged, $2,500) of the property she owned would be a reasonable fee for representing her in the suit. She alleged she believed the representations were true, and was induced by such belief to execute the instrument in question; whereas, she charged, the representations were false in that, as she later learned, Huffmaster "would have no services to perform at all in regard to getting her undivided one-half of the property" owned by her and her husband, "except to call for it in her divorce petition and mention it to the court." She alleged that $50 or $75 would have been a reasonable fee for representing her in the suit. She then alleged that within a few days after she employed Huffmaster to represent her she ascertained that—

"She had been deceived by him, and induced by his fraudulent representations to sign away an unconscionably large portion of her estate to pay him a fee to fight what he claimed to be a hard lawsuit to get her property, when, in fact, it was given her by the plain statutes, and could not be denied or controverted, and would have been given to her without a lawyer, and was not disputed by her husband, she returned to the office of said Huffmaster, and complained of his having induced her to make such contract, and requested him to rescind the contract with her, and accept the cash he had received as pay for what he had done, and to permit her to get another attorney, all of which he agreed to do, and to cease to represent her, and agreed to quit the case; but she then asked him to reconvey to her her said one-fourth of all her land and personalty, removing the cloud thereby from her title, which he refused to do."

It appeared from other parts of said petition that Mulkey was made a party to the suit because, it was alleged, Huffmaster had fraudulently conveyed to him the one-fourth part of defendant in error's property, which he (Huffmaster) claimed to have acquired by force of said instrument.

On special issues submitted to them the jury found as follows: (1) When Mrs. Toland "was about to employ" Huffmaster, "he represented to her and caused her to believe that the recovery of her property was a hard case." (2) The representation was not true. (3) Mrs. Toland relied "upon such representation in signing the contract." (4) Huffmaster represented to Mrs. Toland and caused her to believe "that $50 cash and one-fourth of her land and personal property would be a reasonable fee for the services which he was to render her under such employment." (5) $50 and one-fourth of said property was not a reasonable fee for such services. (6) A reasonable fee for such services would have been $300. (7) A reasonable fee for the services actually rendered by Huffmaster was $50. (8) That "at or before the time" when Huffmaster transferred his rights under the instrument in question to Mulkey the latter "learned such facts as would cause a man of ordinary prudence to inquire" whether Mrs. Toland was induced to execute the instrument by fraud practiced upon her or not.

The appeal is from a judgment canceling the instrument in question as prayed for by Mrs. Toland, and awarding Huffmaster a recovery against her of $12.50.

Terry & Brown, of Kaufman, for plaintiffs in error.

Stroud & Dailey, of Dallas, for defendant in error.

WILLSON, C. J. (after stating the facts as above).

The sufficiency of the testimony to support the finding of the jury that the fee agreed upon between Mrs. Toland and Huffmaster was not a reasonable one is not questioned by appellant in any of the assignments in their briefs. The main contention they present is that the representation, made by Huffmaster to Mrs. Toland, that the recovery of her property was a "hard case," though false, as found by the jury, could not be made the basis of relief to her, because, they assert, the representation was not as to a fact, but was merely the expression of an opinion entertained by Huffmaster.

The general rule is that a false representation, to be actionable, "must be one of fact, as distinguished from an expression of opinion." 26 C. J. 1081. As stated, the rule appears to be plain enough and easy to apply, but it is not in many cases, because of the difficulty in determining whether a given representation is "an expression of opinion" within it or not; for many such expressions are treated as representations of fact. The test to be applied in determining whether an opinion in a given case should be construed to be a representation of fact or not is stated as follows in 1 Black on Rescission and Cancellation, § 77:

"If the representation is as to a matter not equally open to both parties it may be said to be a statement of fact as such; but if it is as to a matter that rests merely in the judgment of the person making it, and the means of deriving information upon...