Mason v. Peterson

• Decision Date: 18 April 1923
• Docket Number: (No. 333-3696.)
• Citation: 250 S.W. 142
• Parties: MASON v. PETERSON et al.
• Court: Texas Supreme Court

250 S.W. 142

MASON v. PETERSON et al.

(No. 333-3696.)

Commission of Appeals of Texas, Section B.

April 18, 1923.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Mrs. E. V. Peterson and others against Calvin F. Mason to recover on vendors' lien notes. The court of civil appeals affirmed a judgment for plaintiffs (232 S. W. 567), and defendant brings error. Reversed and remanded.

Seabury, George & Taylor, of Brownsville, for plaintiff in error.

Graham, Jones, Williams & Ransome, of Brownsville, for defendants in error.

McCLENDON, P. J.

On September 20, 1913, E. V. Peterson and wife conveyed to Calvin F. Mason a tract of land in Hidalgo county for a total consideration of $4,800, $3,000 of which was represented by certain property in Missouri valued at that amount, and the balance by two vendors' lien notes for $900 each due two and three years respectively after date. Mason paid the interest on these notes up to September 17, 1917, but paid no part of the principal. E. V. Peterson having in the mean time died intestate, this suit was brought on September 13, 1920, by his heirs at law, against Calvin F. Mason to recover the amount unpaid on these notes and to foreclose the vendor's lien securing them.

In addition to a general denial, Mason pleaded failure of consideration for the notes in that at the time he purchased the land S. A. McHenry, the duly authorized agent of Peterson, fraudulently represented to him that there were only four or five acres of the land that were not susceptible of irrigation by gravity flow from an adjacent irrigation canal, whereas there were in fact about nineteen acres which could not be thus irrigated; that defendant believed and relied upon this representation and would not otherwise have bought the land; that, had the land been as represented, it would have been worth the contract price; but that its actual and market value was not exceeding the $3,000 actually paid by him. This misrepresentation of fact was pleaded by Mason as a defense to the suit on the notes only by way of failure or partial failure of consideration; and he prayed that, if it should be determined that the land was in fact worth more than $3,000 and less than $4,800, the amount of plaintiffs' recovery be diminished to the extent that the value of the land fell short of $4,800. There was a further claim by Mason that McHenry had misrepresented the acreage under fence, but as this item was eliminated by the verdict, it need not be further noticed.

Plaintiffs, in a supplemental petition, denied the misrepresentation and the authority of McHenry to bind Peterson thereby; alleged that defendant was estopped to set up failure of consideration because he had examined the land before he bought it, and on various dates since the notes were executed had acknowledged their justness, promised to pay same, and made interest payments thereon, some of which acknowledgments and promises had been made since the maturity of the notes. Plaintiffs also plead the two and four year statutes of limitation in bar of the defense of failure of consideration. A separate count in this pleading reads:

"They allege defendant became thoroughly familiar with said lands and the condition and value of the same before signing said notes, and within less than a year thereafter, and up to the time of filing his answer herein, he had never intimated or suggested to E. V. Peterson or plaintiffs that there was any kind of failure of consideration for said notes, but, on the contrary, has on many occasions expressed his willingness to pay the same, after the maturity dates thereof, in consideration for the payment of interest thereon and acceptance thereof by plaintiffs, and in consideration for withholding suit thereon, which statements plaintiffs believed, relied thereon, and have been injured thereby."

Before any evidence was introduced, the defendant, for the purpose of obtaining the opening and closing in the introduction of the testimony and argument before the jury under district court rule 31 (142 S. W. xx) admitted the cause of action as pled by plaintiffs, as set out in their original petition, and stated to the court that he relied only upon the defensive matters set up in his answer. Upon this admission defendant was accorded the right to open and close as provided in rule 31. The case was submitted to a jury upon special issues, the pertinent jury finding being substantially as follows: That McHenry represented to defendant while upon the land and before defendant bought it that there were only four or five, or not more than four or five acres, that were too high to water; that this representation was made as a fact, and not as the mere expression of an opinion; that the market value of the land in bulk at the time of the sale was $3,635; that in the spring of 1913 defendant was in possession of such facts as would have put a reasonably prudent man upon such inquiry as would have led to the discovery of the quantity of land too high to water; and that the reasonable market value of the land at the time of the sale, if it had been as represented to defendant, would have been $4,800.

Upon these findings the trial court rendered judgment for plaintiffs for $2,557, the full amount of the notes, and for foreclosure of the vendor's lien. At the request of defendant the court made findings of fact and conclusions of law to the effect that the undisputed evidence showed that 16.57 acres of the land was too high for irrigation purposes, 11.57 acres of which were sold to defendant as irrigable land at an agreed price of $120 per acre; that the defense of failure of consideration was as a matter of law a cross-action and was barred by the two-year statute of limitation. The court further concluded as a matter of law that, if he was mistaken in his conclusion that the defense of two-year limitation was a bar to the plea of failure of consideration, then the judgment should be for the plaintiff for $917.55 instead of $2,557.

Upon appeal by defendant Mason to the Court of Civil Appeals the trial court's judgment was affirmed. 232 S. W. 567.

As we construe the two opinions of the Court of Civil Appeals, that court bases its conclusion that the trial court's judgment should be affirmed upon the ground that the evidence as a matter of law will not support a judgment in favor of defendant upon his plea of failure of consideration because defendant examined the land before buying it and had the same opportunity of observation that McHenry had; that the representations of McHenry were merely expressions of opinion; and that defendant was not wholly induced to buy the land by reason of those representations.

The evidence shows that at the time of the sale defendant was a resident of Missouri and had no knowledge of irrigation or irrigable lands. The tract in question was supposed to contain 40 acres, but evidently part of it was taken up by the irrigation canal, leaving about 35 acres which were under fence. Defendant came to Texas shortly prior to the sale, and was taken upon the land by McHenry as the agent of E. V. Peterson for the purpose of making the sale. Defendant was taken over a part of the land, all of which was then "in the brush," and there appeared to be a portion of the land in the southeast corner which was somewhat elevated. Defendant testified that this portion was pointed out to him by McHenry with the assertion that it was a little bit too high to water and would make a nice yard or building site. Defendant then asked whether there were two or three acres of this high ground. McHenry hesitated and "would not say," whereupon defendant inquired, "Not more than four or five acres?" to which McHenry replied, "No; not more than four or five acres." Defendant was corroborated in this statement by the testimony of his son, who gives substantially the same version of the conversation. The testimony of these two witnesses is set out in the two opinions of the Court of Civil Appeals. McHenry denied that he made the statement or gave such reply to defendant's questions. The following spring defendant had the land cleared, but never put any of it in cultivation and never had it surveyed until after plaintiffs' suit was filed. Defendant testified that he believed and relied upon the representations of McHenry, but for which he would not have bought the land. While there was some conflict in the testimony upon the question of values, the findings of the jury and trial court upon that issue are amply sustained; and, as found by the trial court, there were all told 16.57 acres that were not susceptible of irrigation by gravity flow from the canal.

We think the evidence was sufficient to go to the jury upon the issue of misrepresentation of a material fact as an inducement to defendant to purchase the land and execute the notes. While the circumstances under which McHenry imparted the information that there were not more than five acres not susceptible of irrigation may be sufficient to warrant a finding that he was merely expressing an opinion, and not making a representation of fact, we think the conclusion that he was making a representation of fact is a fair inference to be drawn from the testimony. It makes no material difference, it seems to us, that the information was not volunteered by McHenry, but was given in reply to an inquiry of defendant. The fact that defendant made the inquiry of itself was an indication that he considered the amount of the irrigable acreage as important. An unequivocal answer by the seller to a question propounded by the buyer in the course of the negotiations leading up to the sale has, it seems to us, as much solemnity as a representation of...