International Land Co. v. Parmer

• Decision Date: 01 December 1909
• Citation: 123 S.W. 196
• Parties: INTERNATIONAL LAND CO. v. PARMER et al.
• Court: Texas Court of Appeals

Page 196

123 S.W. 196

INTERNATIONAL LAND CO. v. PARMER et al.

Court of Civil Appeals of Texas.

December 1, 1909.

Appeal from District Court, Deaf Smith County; J. W. Crudgington, Special Judge.

Action by W. B. Parmer and another against the International Land Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

John C. North and Carl Gilliland, for appellant. Knight and Slaton, for appellees.

FISHER, C. J.

This is a suit by appellees to recover of appellant the sum of 50 cents per acre on about 5,100 acres of land, alleged to be due the appellees on a certain written contract entered into by appellees and appellant on the 4th day of October, 1907. The stipulation sued upon is to the effect that appellant agreed to pay appellees 50 cents an acre for the privilege of being allowed to sell their land within a certain time at a certain price. Appellant for answer pleaded a general demurrer, general denial, failure of consideration, fraud, duress, and a cross-action for damages. In the court below a verdict was instructed in appellees' favor for the sum of $2,616, for which amount judgment was rendered. At the outset we desire to say that those assignments of errors which are not specially discussed are overruled. We have examined into the questions they present, and conclude they show no reversible error.

The fourth and fifth subdivisions of defendant's answer, considered together, are substantially to the effect that plaintiff procured the execution of the contract on which this suit is based by the representation and promise made to defendant that if it would sign and execute the contract he would procure for defendants an extension of 60 days' time on a note then due by defendant to a certain bank of which the plaintiff Parmer was president and manager, and that this promise influenced the defendant to execute the contract; that the promise was falsely and fraudulently made by plaintiff for the purpose of inducing the defendant to execute the contract, he at the time intending not to perform it; that this promise was not embraced in the written contract, but was the basis for it; that plaintiff did not perform this agreement or observe the promise, in that before the 60 days had expired he caused the bank to place the note in the hands of an attorney for collection, thereby causing the defendant the expense and liability for attorney's fees, which were provided for by the note if placed in the hands of an attorney after maturity for collection, which attorney's fees are alleged to be $500, which amount is stated to be a reasonable sum. By reason of this the defendant claims it has sustained damages in the sum of $500, for which it alleged the plaintiff was liable, by reason of the fraud pleaded, and for which damages it sues. The court sustained special demurrers to these allegations which ruling is made the basis of appellant's first, second, third, fourth, fifth, and sixth assignments of error. The facts pleaded, if true, present a case of fraud for which the injured party is entitled to the appropriate relief. How far this may extend depends upon the prayer for relief and the evidence introduced in support of the issue. This is a question at present with which we have no concern, as it will be doubtless properly considered and disposed of by the trial court upon another trial.

The question before us is whether the court below erred in sustaining the demurrers, and if the count for damages presented an item to be considered as arising from a breach of the promise, and as a result of the fraud so alleged. An affirmative answer must be given to both of these questions. In determining the effect of a promise falsely made, with the present intention not to perform, in order to secure the execution of a contract, reference is made to the recent case of Beaumont Carriage Co. v. Price & Johnson, 104 S. W. 499, and cases there cited. Of course, it is conceded that in cases of this class, like all other cases of the fraudulent procurement of contracts, the facts constituting the fraud may be shown to defeat it or restrict its operation, independent of recitals contained in the written instrument. The court erred in sustaining these demurrers.

This brings us to a question suggested by the record, but which is not distinctly preserved by an assignment of errors carried into appellant's brief, but as the case will be reversed, and as it might arise upon another trial, we deem it proper to notice it. The appellant, in addition to the pleas just disposed of, pleaded that while the written contract declared upon by the plaintiff did not embrace the promise to extend the payment of the bank note for 60 days as a part of the consideration for such contract, nevertheless such promise was so made by plaintiff and constituted the consideration, in part or in whole, for the execution by appellant of the contract. A breach of this parol agreement was alleged and a special demurrer was sustained to this subdivision of the answer, and the question arises whether parol evidence was admissible to engraft upon the written agreement this...