Huth v. Cater, 11842.

• Decision Date: 30 June 1948
• Docket Number: No. 11842.,11842.
• Citation: 215 S.W.2d 270
• Parties: HUTH v. CATER et al.
• Court: Texas Court of Appeals

215 S.W.2d 270

HUTH v. CATER et al.

No. 11842.

Court of Civil Appeals of Texas. San Antonio.

June 30, 1948.

On Motion for Rehearing September 15, 1948.

Rehearing Denied October 13, 1948.

Appeal from District Court, Forty-ninth District, Dimmit County; R. D. Wright, Judge.

Action by Mrs. L. B. Huth against William D. Cater and others to recover damages for fraud in defendants' sale of certain real and personal property to plaintiff. From a judgment for plaintiff in less than the amount sued for, she appeals.

Reversed and remanded.

G. C. Jackson and H. S. Groesbeck, both of Crystal City, for appellant.

B. L. Jeffrey, of Carrizo Springs, for appellees.

MURRAY, Justice.

Mrs. L. B. Huth instituted this suit against William D. Cater and his wife, Luella L. Cater, and Mrs. Mary Jenny Cater, a widow, seeking to recover damages sustained by her as the result of the fraud and deceit practiced upon her by William D. Cater, acting for himself and as agent of the other appellees herein, in a transaction in which she purchased and appellee sold to her certain real and personal property.

We here copy from appellant's brief concerning the exact nature of her cause of action:

"Appellant sued for her damages: For the cost of a new pump, the sum of twenty-three hundred and fifty ($2350.00) dollars; fifty dollars ($50.00) expense in repairing the tractor, the sum of two hundred ($200.00) dollars spent in an effort to repair the earthen tank which had been misrepresented and an additional one thousand ($1,000.00) dollars cost of building a new tank; the sum of fifty ($50.00) dollars for repairs on the tractor, and for the value of the pear burner twenty ($20.00) dollars and the lawn mower, ten ($10.00) dollars."

The trial court discharged the jury and rendered judgment in favor of appellant in the sum of $30 to cover repairs on the tractor, $20, value of pear burner, and $10, value of lawn mower, and thus he denied the recovery for the cost of the new pump, the sums spent in an effort to repair the earthen tank and the cost of building the new tank.

Appellant has prosecuted this appeal contending that she should have been given judgment for the items a recovery for which was denied.

The trial court made and filed what he termed "Views of the Trial Court," reading as follows:

"The following views of the trial court are ordered filed and entered in the transcript in case of appeal:

"The transaction in question was a real estate transaction, especially in view of the fact that the earthen tank and pump were shown by the undisputed testimony to be a part of the land, and the measure of damages since the passage of Article 4004 of the Statutes in 1919 was governed by that statute, which was considered in the case of Sibley v. Southland Life Insurance Company, 36 S.W.2d 145, by the Supreme Court of Texas.

"Before the passage of Article 4004, the correct rule for measure of damages was as decided by Judge Fly in the case of Linnartz v. Lawrie, Tex.Civ.App., 192 S. W. 789.

"The Court gave the plaintiff a judgment for $30.00, the amount spent to repair the tractor, and $20.00, the value of the pear burner, and $10.00, the value of the lawn mower, aggregating $60.00. These three articles were the only ones that the evidence placed any value on. Defendants' cross-action was dismissed without prejudice, and the costs of the main case and the cross-action were placed on the defendants, and the defendants have no complaint of the judgment.

"There was no allegation and there was no proof as to what the value of the real estate...