Landfried v. Milam

• Decision Date: 26 June 1919
• Docket Number: (No. 2133.)
• Parties: LANDFRIED et ux. v. MILAM et al.
• Court: Texas Court of Appeals

Page 847

214 S.W. 847

LANDFRIED et ux. v. MILAM et al.

(No. 2133.)

Court of Civil Appeals of Texas. Texarkana.

June 26, 1919.

Rehearing Denied July 31, 1919.

Appeal from McLennan County Court; James P. Alexander, Judge.

Action by Henry Landfried and wife against J. R. Milam and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded for new trial.

The suit was by appellants against appellees, J. R. Milam, M. A. Cooper, and H. W. Carver, the owners of certain land known as "Travis Park," an addition to the city of Waco, to rescind a contract whereby the former purchased of the latter lots 1, 2, and 3 in block 10 in said addition, and to recover back $375.50 paid on the lots and cancel promissory notes for sums to be paid thereon aggregating $609.50, or, in the alternative, for actual damages in the sum of $985, the purchase price of the lots, less $75, alleged to be their value, and exemplary damages in the sum of $50.

Appellants alleged that a few days before they purchased said lots 1, 2, and 3 they were induced to purchase lot 4 in block 7 in said addition, by representations, charged to be false, made to them by agents for the sale of the lots, as follows: (1) That the size of said lot 4 was 50 by 165 feet. (2) That it was worth $350. (3) That the lots in the addition were inside the Waco city limits. (4) That one August Spitzer owned a large number of the lots, and had "bought lots and sold them at a profit and gotten rich from them." (5) That one Jacob Gauer had bought lots in the addition and sold them at a profit. (6) That street cars "would run in said addition within five months." (7) That appellees intended to put down sidewalks and pave streets in the addition. (8) That one Charles Weisinger had bought lots in the addition. Appellants further alleged that said representations were also intended to influence them to buy other lots in said addition, and that they were induced by same, and by a false representation that appellees had resold said lot 4 for appellants at a profit of $100, and could and would resell for purchasers at a profit of $100 each, lots they might purchase in said addition, to purchase said lots 1, 2, and 3.

Appellees' answer consisted of a general denial, a plea of estoppel based on a provision in the contract covering the sale of said lots 1, 2, and 3, as follows:

"The signer of this agreement expressly agrees and understands that no agent has power or authority to bind M. A. Cooper, H. W. Carver, or J. R. Milam, or the Travis Park Sales Company, by any act or statement not set forth in this document"

—and allegations constituting a cross-action for a recovery against appellants of the amount of the notes they gave for part of the purchase price of the lots.

On special issues submitted to them the jury found: (1) That one Gode, an agent for the sale of the lots, represented to appellants that Jacob Gauer had bought lots in the addition and sold them at a profit, and that the representation was true. (2) That said salesman, Gode, did not represent to appellants that appellees intended to "put down sidewalks and pave streets" in said addition. (3) That said Gode did represent to appellants that Charles Weisinger had bought two lots in the addition. That as a matter of fact said Weisinger agreed to, but did not, buy the lots. (4) That Gode did not represent to appellants, before they purchased said lots 1, 2, and 3, that he had sold lot 4 for them at a profit. On said findings the court rendered judgment that appellants take nothing by their suit, and on findings he made himself rendered judgment in appellees' favor against appellants for the sum of $698.45 as the amount due on the notes mentioned.

S. H. Clayton, E. W. Hander, and E. B. Baker, all of Waco, for appellants.

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