King v. Cliett

• Decision Date: 26 June 1930
• Docket Number: No. 936.,936.
• Citation: 31 S.W.2d 350
• Parties: KING v. CLIETT et al.
• Court: Texas Court of Appeals

31 S.W.2d 350

KING v. CLIETT et al.

No. 936.

Court of Civil Appeals of Texas. Waco.

June 26, 1930.

Rehearing Denied October 2, 1930.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Suit by J. Leslie King against A. Gus Cliett and others. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

G. L. Armstrong, of Dallas, and Geo. Clark and J. J. Campbell, both of Waco, for appellant.

Frazier & Averitte, of Hillsboro, for appellees.

BARCUS, J.

On May 10, 1928, appellant and wife, by warranty deed, conveyed to appellee A. Gus Cliett a house and two lots in the city of West, for a recited consideration of $1,550, cash paid, and subject to the indebtedness against said property, which was about $450. The $1,550 was paid by $50 in cash, and a purported vendor's lien note for $1,500 against certain property in Tarrant county, Tex. On July 28, 1928, appellant instituted this suit against A. Gus Cliett, H. H. Thomas, and Eric Chapman to cancel said deed and recover damages which he claimed to have suffered, alleging, in substance, that the $1,500 note which had been given him and which each of the named defendants had told him and guaranteed to him was perfectly valid was absolutely worthless. On January 28, 1929, appellant and his wife executed and delivered to appellee Cliett a document which recites that appellant had previously executed the warranty deed to Cliett for the consideration named in the deed, and that appellant had brought this suit in the district court of McLennan county, and that the suit had put a cloud on the title of Cliett to the property, and then stated (1) that the consideration specified in the deed as having been paid by Cliett was in truth and in fact paid to appellant, (2) that the property was not the homestead of appellant, (3) that the deed was properly acknowledged by appellant's wife, (4) that Cliett had not personally made any false representations with reference to the purchase and sale of the land, and that appellant's suit as to Cliett was without merit, and paragraph (5) is in the following language: "We have demanded of the said A. Cliett the payment to us of the sum of $100.00 in consideration for our withdrawal from said suit in order to have the cloud removed from the title to said property incident to the existence of said suit and the claims personally asserted by us in the petition on file therein, and he has paid us said $100.00, the receipt of which is hereby acknowledged, for that and no other purpose. And it is expressly understood and was so understood at the time said payment was made that he would and did not thereby in anywise admit any liability as a defendant in said suit or the verity of any allegation in said petition contained; and this instrument is signed, executed and delivered by us after we and each of us have carefully read the same over and understand its contents, in consideration of the premises and for the purpose of affirming the full and complete validity and the binding effect on us of said deed recorded in Volume 394, page 531, of the Deed Records of McLennan County, Texas, reference to which is above made." Said document was acknowledged in the form of a deed and was also sworn to by appellant and his wife.

The first information the attorneys for appellant had of the above document was when the amended answer of appellee Cliett was filed on October 4, 1929, the date the cause was tried.

Appellant, by an amended pleading, sought to recover judgment against each of the defendants in the trial court for $1,400, being the amount named in the deed, less the $50 originally paid and the $100 paid by appellee Cliett on January 28, 1929. Appellant alleged that appellees, and each of them, represented that said $1,500 vendor's lien note was a bankable note and was worth 100 cents on the dollar and could be cashed without trouble at any bank. He alleged said representations were false and fraudulent, and that each of said appellees knew same to be false and fraudulent; that he relied on said representations and but for same he would not have conveyed his property to Cliett. He alleged that at the time he signed the deed in May, 1928, his wife was sick, and that he was without employment, and that he was selling the house and two lots in West, being the only property he and his wife owned, in order that they might meet the bare necessities of life.

He alleged that at the time he signed the document in January, 1929, he and his wife were both without employment; that she was in very bad health; that they were depending upon charity for their meals, and that they were in dire distress and need; that appellee Cliett knew said facts; that Cliett told appellant and his wife that he would give them $100 if they would sign said document, and for them not to tell their attorneys or any one else about having signed it, and that, if they did not accept the $100, they would not, as a matter of fact, get anything. Appellant alleged that by reason of said representations and by reason of the condition in which he and his wife were at the time, both physically and financially, he signed said document and received from appellee Cliett the said $100.

The cause was tried to the jury, and at the conclusion of the testimony the trial court discharged the jury and entered a judgment in favor of each of the defendants, denying appellant any recovery.

In its judgment the trial court stated that there had not been proper service on the defendants Thomas and Chapman to authorize appellant a recovery. He, however, entered a decree specifically denying appellant any recovery against said defendants.

By a number of propositions appellant contends the trial court erroneously discharged the jury and withdrew the case from them and entered judgment in favor of appellees, his contention being that there were issues of fact raised by the pleading and testimony that should have been submitted to the jury, which, if answered favorably, would have entitled him to a verdict.

Appellant testified that in the spring of 1928 he was without employment; that his wife was sick, and that he was in sore need of money, and that he enlisted the services of appellees Thomas and Chapman to assist him in selling his house and two lots at West; that in May, 1928, they told him they could sell said property to appellee Cliett for $1,550, and Cliett would pay the outstanding liens, amounting to about $450, against said property, and that he agreed to take said price; that thereafter appellee Cliett came to Dallas with an abstract of title which he (Cliett) had had prepared to appellant's property in West, together with the deed reciting a cash consideration of $1,550, and subject to the indebtedness against same; that Cliett gave him a check for $50 and gave him a vendor's lien note for $1,500, payable to H. S Akin, and by Akin indorsed, and purporting to be a lien on some property in Tarrant county, and that Chapman and Thomas, as agents for Cliett, represented to him that said note was a bankable note and could be cashed at any bank, and that same was worth face value; that he relied on and accepted said note on said representations. He further testified that said note was absolutely worthless, and that appellees knew said fact. Defendant Thomas testified that he was the agent of appellee Cliett, and that Cliett paid him a commission for making the deal and getting the property from appellant, and that Cliett owned said purported vendor's lien note on the Tarrant county land, he having purchased same from H. S. Akin. The testimony shows that appellant was doing menial labor in one of the hospitals in Dallas; that his wife was a sickly woman and that they were in dire financial stress. Appellant testified that in January, 1929, his wife was sick and he was in dire need of financial assistance; that he was receiving weekly a certain amount from the charity fund in Dallas; that he went to Hillsboro, walking part of the way and getting a free ride a part of the way, to see appellee Cliett and collect from him the $1,500 that was still due him on his land; that appellee Cliett told him he would be up to Dallas in a few days and see him and not to discuss the matter with his attorney or any one else; that Cliett advanced to him the railroad fare home, and that a few days thereafter Cliett came to his apartment in Dallas with a notary public with the instrument dated January 28, 1929, already prepared, and told him and his wife that if they would sign the document he would give them $100; that if they did not sign it they would never get anything out of the matter; that by reason of their dire necessity and distressing condition, and the statement made to them by Cliett that he knew as a matter of fact they could not recover anything in said suit, they signed the instrument and received from Cliett the $100, less the $3 which he had advanced as railroad fare. Appellee Cliett testified he knew...