Isenhower v. Bell

• Decision Date: 20 February 1963
• Docket Number: No. A-9068,A-9068
• Citation: 365 S.W.2d 354
• Parties: James Wesley ISENHOWER et al., Petitioners, v. G. D. BELL, Respondent.
• Court: Texas Supreme Court

Page 354

365 S.W.2d 354

James Wesley ISENHOWER et al., Petitioners, v. G. D. BELL, Respondent.

No. A-9068.

Supreme Court of Texas.

Feb. 20, 1963.

Rehearing Denied March 20, 1963.

Runge, Marschall & Hall, San Angelo, for petitioners.

Davee & Davee, Brady, for respondent.

GREENHILL, Justice.

The judgment heretofore entered is set aside; and the opinion heretofore rendered is withdrawn, and the following is substituted therefor.

G. D. Bell and W. L. Jackson, as partners, owned the Bell Feed Store in Brady, Texas. Bell desired to sell, and he ultimately entered into a written agreement to convey his interest to W. L. Jackson and J. W. Isenhower. The parties soon fell into disagreement, among other things, as to how much Bell and the store owed and who was obligated to pay the outstanding debts. This suit was brought by Jackson and Isenhower against Bell for damages for fraud and for rescission. In particular, Jackson and Isenhower alleged that Bell had wrongfully represented that the debts of the store did not exceed $8,500. After a trial by jury, judgment was entered against Bell, and for Jackson and Isenhower for damages. That judgment was reversed and the cause was remanded for a new trial by the Austin Court of Civil Appeals, 356 S.W.2d 485. Jackson and Isenhower applied to this Court of writ of error. Bell filed no application. The case has been handled on appeal in an unorthodox fashion, and our disposition of the case is limited by the points of error which have been preserved and presented.

The only point of error which Jackson and Isenhower have in this Court is that 'The Court of Civil Appeals erred in reversing the judgment of the district court * * * because such action is not founded on fundamental error or on any assigned error.'

We have examined the points of error of Bell in the Court of Civil Appeals and agree that the Court of Civil Appeals, in its opinion, did not reverse the case on any assigned error. It did, however, reverse the case and remand it for a new trial. Under those circumstances, this Court will review the points of error in Bell's brief in the Court of Civil Appeals to see if there was error assigned which would support the judgment of the Court of Civil Appeals. Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 383 (1952); Calvert, 'Supreme Court Review,' 21 Texas Bar Journal 75 at 112.

As stated, Bell did not bring an application for writ of error to this Court complaining of the failure of the Court of Civil Appeals to sustain his points which would require a reversal and rendition of the judgment.

Bell had six points in the Court of Civil Appeals. His points two and there, assuming them to be properly preserved and presented, did present points which, if sustained, would require a remand of the cause. They will be discussed below. Bell's points one, four, five, and six, if sustained, would have required a rendition of the judgment. They deal with the failure to sustain special exceptions, which would result in rendition of the case if sustained, failure to grant an instructed verdict, failure to grant Bell's motion for judgment notwithstanding the verdict of the jury, and similar matters. We do not regard these points as being before us.

Bell's third point deals with special issues requested by Bell and refused by the trial court. This point has 10 parts or subpoints, lettered (a) through (j), complaining of the trial court's failure to submit his requested issues 1 through 10. The issues which were refused are not set out. The first subpoint reads: 'The trial court erred in overruling and not submitting to the jury appellant's special requested charge No. 1, same being amply raised by the evidence.' The other subpoints are the same except the number of the requested special issue is changed.

Rule 418, Texas Rules of Civil Procedure, deals with the requirements of briefs in the Court of Civil Appeals. Section (b) of Rule 418, regarding points of error, says, 'Such points will be sufficient if they direct the attention of the court to the error relied upon * * *.' Section (c), which deals mainly with argument, provides in part, 'If complaint is made of any charge given or refused, such charge shall be set out in full.' This was not done either in the point of error or in the argument.

The substance of the requested special issue No. 6 is set out in the argument under that point; and we shall here assume that the point is therefore preserved. Assuming that the point is preserved, it does not present error. Subpoint (f) of Point 3 complains of the error of the trial court in refusing to submit Bell's special requested issue No. 6. Examining the transcript, we find the requested issue reads, 'Do you find * * * that the plaintiff Isenhower knew or should have known by use of reasonable diligence, the amount of the indebtedness owed by Bell Feed Store at the time of purchase.'

As pertinent here, this was a suit for fraud. It was alleged, and the jury found, that Bell represented that the debts of the store did not exceed $8,500; that the representation was of a material fact; that Isenhower relied thereon; and that it was untrue. Where one has been induced to enter into a contract by fraudulent representations, the person committing the fraud cannot defeat a claim for damages based upon a plea that the party defrauded might have discovered the truth by the exercise of proper care. Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808 (1888); Moore v. Beakley (Tex.Com.App.1919), 215 S.W.2d 957. An affirmative answer to the requested special issue based upon what Isenhower should have known would not, therefore, have constituted a defense to the alleged fraud. The trial court did not err in declining to submit the requested issue.

Bell's requested issue No. 7 would have inquired whether Isenhoweer was negligent in not ascertaining the amount of indebtedness owed by the feed store. The trial court properly refused to submit this issue for the same reason.

Bell's requested issue No. 1 would have inquired whether Bell guaranteed that the indebtedness of the store did not exceed $8,500. Special issue No. 3 which was given by the court inquired whether Bell represented to Isenhower that the debts owed by the store did not exceed $8,500. The issue given, therefore, submitted the substance of Bell's requested issue No. 1 and was no more onerous on him. The court did not err in refusing to submit the whether such representation induced

Bell's requested issues 2 and 3 (inquiring whehter such representation induced Bell to enter into the agreement) were conditioned upon an affirmative answer to his requested issue No. 1. The court therefore did not err in refusing to submit those issues.

Subpoint (d) of Bell's third point of error says that the trial court erred in refusing to submit his requested issue No. 4. The issue is not set out. The entire argument under the point is:

'(d) S.F. P. 132, P. 139, P. 141, and P. 143.'

One of the main purposes of Rule 418 is to require counsel to put before the Court of Civil Appeals in the brief at least the substance of the point relied upon for reversal and to relieve the appellate court from having to piece together a point for the appellant from an examination of the transcript and the statement of facts. A bare reference to a requested issue No. 4 and a reference to four pages in the statement of facts, without stating the substance of any of the material referred to, is not enough. The point was, therefore, not preserved. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). The same is true of Bell's requested special issues 5, 8, 9 and 10. ¹

Bell's second point of error dealt with the admissibility of evidence. On October 2, 1958, Bell and Isenhower...