Jackson v. Goldberg

• Decision Date: 28 April 1926
• Docket Number: (No. 7554.)
• Citation: 283 S.W. 860
• Parties: JACKSON et al. v. GOLDBERG.
• Court: Texas Court of Appeals

283 S.W. 860

JACKSON et al. v.GOLDBERG.

(No. 7554.)

Court of Civil Appeals of Texas. San Antonio.

April 28, 1926.

Appeal from District Court, Dallas County; Hon. T. A. Work, Judge.

Action by H. E. Jackson and others against Joe Goldberg.Judgment for defendant, and plaintiffs appeal.Reversed and remanded.

Blanks, Collins & Jackson, of San Angelo, and Thompson, Knight, Baker & Harris, J. L. Goggans, and B. O. Baker, all of Dallas, for appellants.

P. P. Ballowe, M. T. Lively, and O. F. Wencker, all of Dallas, for appellee.

COBBS, J.

Appellants sued appellee to specifically perform a contract for the exchange of lands, and for damages.Appellant was the owner of a farm of 145 acres in Dallas county, with an incumbrance of $10,450 thereon.Appellee was the owner of 100 feet by 100 feet out of block 380 in the city of Dallas, at the northeast corner of McKinney avenue and Griffin street, with an incumbrance thereon to the extent of $10,000.The terms were an even exchange of the property.After an inspection of the property, appellee refused to carry out the contract.The parties were brought together by R. L. Hardy, whose agency both parties deny.R. L. Hardy showed the farm to appellee, and made all representations to appellee in reference to it to induce appellee to make the exchange.During the negotiations appellee alleges and undertakes to prove that, though he signed the contract upon the insistence of Hardy, it was merely tentative, and that he was to have another inspection made of the premises before the deal was closed.He further alleges that R. L. Hardy fraudulently represented to him, as an inducement to make the sale, that the farm was located on a pikeroad and abutted a pikeroad, and that said road was a principal thoroughfare, and that the improvements could be advantageously rebuilt on the pike, and that the farm was bounded by roads or public highways on all four sides.If so surrounded by roads and pikeroad, it would have been worth $30,000, but, being a considerable distance from the main pike, and cut off by a railroad track on one side, touching only dirt or unimproved roads, it was not worth more than the incumbrance against it; that appellee's property was worth two or three times more than appellant's farm.

Appellee refused to put up the forfeit money of $750 called for in the contract until he could again inspect the property.Though appellant, through Hardy, failed to carry him again to the place for further inspection, looking to the completion of the contract as agreed upon, nevertheless appellee himself made the inspection, and found the representations of appellant as to the land, roads, etc., to be false and fraudulent, and, therefore, refused to carry out the deal and demanded the return of his contract.A controversy is also presented as to whether Hardy was the sole agent of the one or the dual agent of the two.

The case was tried with a jury, who answered the issues in favor of appellee, and the judgment of the trial court was entered accordingly.The court charged the jury specially, and error is assigned on the ground that the court neglected to, and refused to, give the requested charge of the appellant that the burden of proof rested upon appellee to establish the affirmative of those issues set forth in issues 2, 3, and 5.

Special IssueNo. 2 related to appellant's alleged false representation that the farm in question was on a pikeroad and had public roads all around it.The pikeroad was known as "Lancaster pike."This was denied pointblank by appellant.

Special IssueNo. 3 related to the question as to whether defendant relied solely on said representation in entering into the contract.

Special IssueNo. 5 related to whether defendant signed the contract with the understanding that the trade would not go through until Hardy, the agent, carried him back to the farm to further investigate and inspect the property.

The insistence of appellant is that upon the determination of these issues it was important that, as to each one, the jury should have been told the burden of proof rested upon the appellee.Appellant contends that the court committed error in not properly charging the jury as to the burden of proof, and that the error was not corrected by giving the following charge:

"The burden of proof is on the defendant to establish his allegations of fraud and fraudulent representations by a preponderance of the evidence."

And that —

"A charge as to fraud is not the same as a charge on the burden of proof to establish that there were roads all around the farm; that defendant relied solely on such representations; and that defendant signed the contract with the understanding that he was to be carried back to the farm to inspect it.It will be noted that the court's charge on the burden of proof, as given, relates solely to the question of fraud whereas issues 2, 3, and 5 relate to other matters, and, therefore, the court's charge had no bearing upon the question."Munger v. Hancock(Tex. Civ. App.)271 S. W. 228;...