Luckenbach v. Thomas

• Decision Date: 01 April 1914
• Docket Number: (No. 5199.)
• Citation: 166 S.W. 99
• Parties: LUCKENBACH et al. v. THOMAS et al.
• Court: Texas Court of Appeals

Page 99

166 S.W. 99

LUCKENBACH et al. v. THOMAS et al.

(No. 5199.)

Court of Civil Appeals of Texas. San Antonio.

April 1, 1914.

Rehearing Denied April 29, 1914.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by C. A. Luckenbach and others against M. S. Thomas and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

J. F. Carl, of San Antonio, for appellants. Taliaferro, Cunningham & Birkhead, R. P. Coon, and F. R. Williams, all of San Antonio, for appellees.

MOURSUND, J.

Appellants, C. A. Luckenbach, A. J. Luckenbach, Adolph Wendler, Bruno Wendler, Henry Wendler, and John F. Nooe, sued M. S. Thomas and Ira Paxton upon four promissory notes dated November 19, 1909, payable to plaintiffs, executed by M. S. Thomas, due respectively on the 20th day of September of the years 1910, 1911, 1912, and 1913, the first three being for $1,466.67 each, and the fourth for $660, all bearing 7 per cent. interest per annum, payable annually, and providing for 10 per cent. attorney's fees if placed in the hands of an attorney for collection after maturity, and further providing that failure to pay interest on any note when due should, at the option of the holder, mature all notes. Plaintiffs alleged that said notes were given in part payment for 200 acres of land out of survey 79, grantee J. H. Gibson, certificate 348, in Dimmit county, the field notes of said land being given, and sought a foreclosure of the vendor's lien retained in the deed executed by them to said Thomas for such land. It was further alleged that default had been made in the payment of interest and the principal of the note first maturing, for which reason all notes had been declared due; that no payments had been made, except $260 upon note No. 1 on November 19, 1909; that the land had been conveyed by Thomas to Paxton, who had assumed the payment of the notes. The case was dismissed as to Paxton.

M. S. Thomas answered by general demurrer, general denial, and for special answer said: That plaintiffs in August, 1909, composed the "Wendler-Luckenbach Land Company," and A. M. Delcambre was their agent; that defendant was desirous of buying and developing an irrigable farm in Southwest Texas, and authorized and instructed T. C. Thomas to look at lands in that section, and, if he could find a tract upon which there was, or could be procured, a flowing well of permanence and sufficient strength to irrigate the entire tract, and such tract could be obtained for a reasonable price, then to purchase the same for defendant; that such desire on the part of M. S. Thomas, together with the authority of T. C. Thomas, was made known to said Delcambre; that Delcambre told T. C. Thomas he had a tract of land for sale such as M. S. Thomas wanted, and showed him the land described in plaintiff's petition; that T. C. Thomas there met C. A. Luckenbach, of the Wendler-Luckenbach Land Company, and told him that M. S. Thomas wanted only land upon which a flowing well of abundant strength could be had; that Luckenbach represented that defendant could get a well on said land as strong as a certain well on other lands owned by said company, which well was then flowing at the rate of 1,200 gallons per minute, and then and there, before defendant had invested any money in said land, guaranteed that, if defendant purchased said land, defendant would get such a well on said land as the one shown him, and that such well would continue to flow such stream for all time to come, and, further, that such well would be sufficient to put water on every part of said land without the necessity of pumping; that said Luckenbach advertised the lands of said company, stating that the flowing wells on the same were guaranteed by him, and the firm of Delcambre, Jones & Co., agent for plaintiffs, advertised said lands, with plaintiffs' knowledge and consent, as being in the "Carrizo Springs artesian belt, where irrigation is accomplished by drilling wells through an impervious cap rock to tap a limitless supply of purest water that is forever driven by natural pressure high above the surface," and described a well on the lands of said company as having been completed eight years prior thereto by A. Eardley at a cost of $850, and as having a flow of 1,260 gallons per minute, which it had retained for eight years without any sign of weakening, and represented that such a well, with a reservoir to store the water, would easily irrigate 400 acres of land, and that lands upon which a well could be procured could be sold by said Delcambre, Jones & Co. at from $35 to $50 per acre; that said advertisements and literature, and the representations contained therein, were brought to the attention of T. C. Thomas in the fall of 1909, and before the contract was made to purchase any of said lands for defendant; that such representations were made for the purpose of inducing T. C. Thomas to purchase said land for defendant, and that they were material, and were believed and relied upon by T. C. Thomas, and, but for the making thereof and his belief therein, said Thomas would not have purchased said land for defendant; that said representations were not true; that T. C. Thomas, relying upon said representations, on September 20, 1909, entered into a written contract to purchase 160 acres of plaintiffs' land for defendant, and later, to wit, in December, 1909, a 40-acre tract was verbally added to said contract, the 200 acres thus contracted for being the land described in plaintiffs' petition; that T. C. Thomas had no knowledge of the flow of water necessary for irrigation purposes, and relied upon Luckenbach for such information, which fact Luckenbach knew; that it was the intention of all parties to the written contract that the same should, by its terms, guarantee that the well to be drilled on the land therein described should furnish a flow of water sufficient to irrigate the entire tract, and that the flow should be permanent, and, if such contract does not express such intention, or if it expresses an intention not in harmony with the same, then the failure to express such intention, or the expression of such contrary intention, is the result of fraud on the part of the Wendler-Luckenbach Land Company, or accident, or mistake on the part of the scriveners, or on the part of the parties to said contract; that said contract was consummated by delivery of deed conveying the land in question signed by plaintiffs, dated November 19, 1909, and the payment by defendant of the first payment of $1,800, and the execution by this defendant of the notes sued upon herein; that in October, 1909, defendant, acting by T. C. Thomas, let the contract for the drilling of a well on said land, and in November, 1909, the well was completed; that in January, 1910, defendant had 35 acres of land cleared and ready for water, but, part of same being above the level of the well, it became necessary to pipe the water to the higher ground, a distance of 400 feet, and the water was turned into said pipe line in the latter part of February, and by March 1, 1910, the flow was so weak that the 4-inch pipe was only two-fifths full where it discharged into the ditch; that by the last of April, 1910, the well flowed so poorly that irrigation had to be abandoned on all but 35 acres of land, and on July 1, 1910, the well had ceased to flow through the pipe line, and that summer it entirely ceased to flow. Defendant further alleged that he had spent various sums in developing and improving the land, the items aggregating $4,407, and had paid interest on deferred payments of purchase money, $336, also interest on amount due for drilling well, $52.80, and had lost a feed crop on 20 acres of land, to his damage $100; also that his time and labor for one year was worth $600, and that he still owed $660 for the drilling of the well; that said expenditures were made and obligations incurred before defendant had knowledge of the fraud on the part of the plaintiffs. Defendant further alleged that, if said representations were not fraudulent, then that plaintiffs believed the water supply was adequate and permanent, and the contract was entered into under a mistake of fact material to the transaction under which all parties were laboring. Defendant, further, by verified plea, alleged that the abundance and permanency of the flow of water in the well to be drilled upon said land was the material part of the contract for the sale of said land and of the contract represented by the deed thereto, and was a material part of the consideration, and the failure of the flow of water was a material failure of consideration; that the falsity of the representations was not discovered by the defendant or his agent until after the delivery of the deed and execution of the notes, such failure not being brought to their notice until the fall of the year 1911. Defendant prayed that plaintiffs take nothing by their suit; that the sale be rescinded, the notes canceled, and that he recover of plaintiffs his damages by reason of expenditures, improvements etc., and, in the alternative, for his damages, should the remedy of rescission be denied him. He tendered a reconveyance of the land.

Plaintiffs filed a supplemental petition containing a general demurrer to the answer, various special exceptions, a general denial, and a special plea as follows: That, if they ever made a contract as alleged by defendant, the defendant accepted a deed under and by virtue of the terms of the contract, after he had satisfied himself that plaintiffs had carried out their part of the agreement, and that he expressed himself as satisfied, and is estopped to deny that plaintiffs carried out their agreement; that, at the time the well came in, they were ready to abide by their contract and repay to defendant his earnest money and the costs of the well, if the well was not satisfactory, but defendant was highly pleased with the well,...