Loper v. Robinson

• Decision Date: 18 March 1881
• Docket Number: Case No. 596.
• Citation: 54 Tex. 510
• Parties: R. D. LOPER ET AL. v. JAMES ROBINSON.
• Court: Texas Supreme Court

54 Tex. 510

R. D. LOPER ET AL.

v.JAMES ROBINSON.

Case No. 596.

Supreme Court of Texas.

Mar. 18, 1881.

APPEAL from Freestone. Tried below before the Hon. John B. Rector.

Robinson sued Loper and McElroy upon a note for $1,203, upon which were indorsed two credits, amounting to $700.

Defendants answered, alleging that the note was given for a tract of land which plaintiff represented to contain 1,231 acres, when in fact it only contained 1,091 acres; that they purchased at the price of $3 per acre, and they claimed a proportional abatement for the number of acres short.

They also alleged that plaintiff represented to them that there was a valuable cedar brake on the land, and that this was with them an important inducement in their purchase at that price; that they relied upon that representation, and gave the price they did, because of it; that in fact there was no cedar brake upon it, and that it is not worth as much as they agreed to pay, or would have been willing to pay, by $500, had they known there was no cedar brake upon it. Prayer for judgment in reconvention for $500.

They also claimed another payment on the note of $300. The plaintiff replied that he surveyed the land himself, by agreement of parties, and that defendants were present and assisted, and carried the chain, and agreed to abide by that survey, and expressed themselves satisfied therewith. That they saw the land, and could not be deceived in relation to the cedar brake, and denied making any representations to them about it.

The evidence showed that the defendants contracted for the land at $3 an acre, agreeing to have it surveyed, and take it at what it should appear to contain, at $3 an acre; that plaintiff surveyed the land, and made the calculations, showing there were 1,231 acres in the tract, the defendant McElroy being present and carrying the chain. That when the land was purchased, plaintiff represented to defendants that there was a cedar brake on the land, and this was an important inducement with them to buy the land at that price, and they relied upon plaintiff's representations. They afterwards ascertained there was no cedar brake upon the land, except some scrubby cedar, and that the tract was not worth as much by $250 as it would have been had it been as plaintiff represented. The witness stated that he assisted in the survey, knew where the lines run, knew they did not include the cedar brake, and after the survey was made executed the promissory note sued on in this case, and made no complaint about the cedar brake.

The defendant Loper also testified to the same facts as his co-defendant. He admitted all that McElroy did as to the execution of the note, and received the deed for the land from plaintiff, knowing that the cedar brake was not included in the survey, and made no complaint about it, for fear plaintiff would demand payment of a note previously given for the land, and sue them.

In relation to the quantity of the land in the survey, the testimony was conflicting; one witness testifying that the tract contained but 1,095 acres; another testified that if the surveyor's calculations were incorrect, that by his plat the land contained 1,103 acres; that he had calculated the land by the field notes in the deed, and found it to contain near about 1,231 acres, and that the previous witness had not made his calculations by a correct mode. Robinson, who surveyed the land, said he found it to contain 1,231 acres. He says he did not represent there was a cedar brake on the land.

The judge charged the jury in respect to the additional payment claimed, and in respect to the deficiency of acres, and of his charge in these respects the defendants made no complaint.

In respect to the cedar brake, the charge of the court is: “If you find that the plaintiff willfully represented to defendants that there was valuable cedar timber on the land sold them, and that such representations were totally or in part false, and formed a material inducement with defendants in purchasing the land, then plaintiff is liable to the defendants for the diminution in the value of the land, occasioned by the failure of the land to contain the cedar timber as represented by the defendants.”

The jury found a verdict for the plaintiff for $481.95, of which plaintiff remitted $75.

The defendants moved for a new trial, which being overruled they appealed.

The errors assigned are:

1. The fifth instruction referred to above.

2. That the verdict is contrary to the law and evidence.

3. That the court erred in overruling the motion for new trial.

Thos. G. Jones, for appellants.

W. B. Robinson, for appellee.

QUINAN, COMMISSIONER.

The assignments of error which complain of the verdict, it will be seen from an examination of the testimony, are not well taken. As respects the quantity of land in the survey the testimony is conflicting, and it was for the jury to determine the issue from the facts before them. Upon this subject, we cannot say that there was no evidence to sustain the finding, and consequently their verdict cannot be disturbed.

The only objection made to the charge of the court is that it qualified the effect of the representations of plaintiff with respect to the cedar brake, by the use of the word “willfully,” and made the right of the defendants to recover because of the falsity of them to depend upon the fact, not only that they were induced to buy the land by them, and that they were false, but that they must have been willfully made.

It is not very clear to us that this objection is sound. It is true that the representations by which a party may be induced to act, and upon which he does...