Mann v. Rugel, 14173
| Citation | 228 S.W.2d 585 |
| Decision Date | 31 March 1950 |
| Docket Number | No. 14173,14173 |
| Parties | MANN v. RUGEL. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Otis Bowyer, Jr., Dallas, for appellant.
Patton & Giles, Dallas, for appellee.
This is an appeal from a judgment having its inception by way of an alleged fraudulent transaction in connection with the sale of store fixtures or equipment, with a lease covering the premises where the fixtures were located. The case was tried to a jury, with facts submitted on special issues which were answered favorably to the plaintiff Paul Rugel (appellee herein); accordingly he was awarded damages against the defendant Roy Mann (appellant herein) and his alleged agent J. A. (Lon) Smith, jointly and severally, in the sum of $1,980. Roy Mann alone appealed and will be hereinafter along designated defendant.
There is no contention of any fraudulent representations made by the defendant or his agent Smith as to the sale of the fixtures, and we are of the opinion that the evidence shows no manifest intention to defraud the plaintiff in regard to the lease. The suit hinges on an implied contract which plaintiff contends tantamounts to fraud as to induce him to purchase the fixtures and to execute the sublease contract. The suit is one is tort.
In consonance with plaintiff's petition and evidence adduced on trial, the defendant Mann, on or before November 5, 1947, was in possession of the premises under long-term lease with the owner of the property. His lease restricted the premises to a 'retail store and not otherwise'; and, being desirous so sell the fixtures with the lease, defendant listed the property with Smith, a real estate dealer, for sale. Smith, with the tacit consent of defendant Mann, placed an advertisement in a Dallas newspaper reading: About the same time Smith contacted the plaintiff in reference to the advertised property, which in time culminated in the sale of the equipment at $2,500 with sublease in terms and restricted covenant as in the top-lease contract,-that the premises be used as a 'retail store and not otherwise.'
It was the purpose of the plaintiff, in purchasing the equipment and obtaining the lease, to use the premises as a 'Barbecue Stand,' and this purpose so expressed to the defendant and the agent Smith. It seems that there was a misapprehension by all the parties during the negotiation as to whether the restricted term in the lease excluded 'barbecue stand.' Neither of the parties seemed to know the legal import of the term 'retail store' and none ventured an opinion as to whether it included or excluded 'barbecur stand'; and no representation was made by the defendant or Smith that same could be used other than as the restricted covenant might apply. Whereupon defendant Mann suggested to the plaintiff that he make inquiry of the owner of the premises, and consult an attorney of his own selection as to whether a 'barbecue stand' is, in legal import, a 'retail store'; or whether the restricted covenant in the top-lease contract bars the use of the premises for a barbecue stand. Soon thereafter, in deference to the suggestion, the plaintiff secured a copy of the top-lease, went to the office of the landlord (owner of the premises), and, knowing the potency of the restricted covenant to him, and cognizant of the uncertainty of its legal import, did not ask the landlord (an eminent attorney) to predetermine its legal effect. And, too, thereafter the plaintiff took the lease contract to a lawyer of his own selection (another eminent attorney) and again failed to ask any question as to the legal import of the restricted covenant. Thus, in absence of a legal opinion, the plaintiff cause his lawyer to propare the sublease involved in this suit, in the exact terms of the top-lease, restricting the use of the premises to 'retail store and not otherwise.' Subsequently, on November 15, 1947, the parties, plaintiff and defendant, executed the sublease contract in duplicate, and, in accordance therewith, plaintiff paid to defendant the consideration for the fixtures and at the same time deposited with the defendant $1,200 to be applied to the last six months of the lease period, to be retained by the lessor in event of default of any of its terms.
Plaintiff contends in pleadings and evidence that, 'as a result of the advertisement' aforesaid, and representations of the defendant and his agent Smith, in consonance with the sublease of the premises restricting its use to 'retail store and not otherwise,' he was induced to consummate the transaction, and immediately thereafter took possession of the fixtures and premises. Subsequently, on learning that the owner would not permit the premises to be used for a 'barbecue stand,' plaintiff sought rescission of the sale, which defendant refused; and as a result thereof plaintiff formed a partnership with another party to take the lease and premises for operation of a 'package store' therein, paying the rental of $200 per month to the owner as it accrued up to August 1, 1948. Plaintiff's evidence is that the 'package store' proved unprofitable; hence he sold the fixtures and lease to Bankers Investment Company for the sum of $2,500, which sum, together with 'about $300' profit received from the liquor venture, amounted to a salvage of his loss of 'about $2,800' out of the contract with the defendant.
It will be seen from the record that there is no evidence showing or tending to show what the plaintiff intended to sell to the consuming public other than what the term 'barbecue stand' may imply. The term 'barbecue stand' manifestly is as indefinite as the term 'retail store.' However it may be said, in either...
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