Maulding v. Niemeyer, 4805

• Decision Date: 20 June 1951
• Docket Number: No. 4805,4805
• Citation: 241 S.W.2d 733
• Parties: MAULDING v. NIEMEYER.
• Court: Texas Court of Appeals

Page 733

241 S.W.2d 733

MAULDING v. NIEMEYER.

No. 4805.

Court of Civil Appeals of Texas, El Paso.

June 20, 1951.

Rehearing Denied July 25, 1951.

Woodville J. Rogers and Geo. R. Thomson, both of San Antonio, for appellant.

Church & Church, and Wm. C. Church, Jr., all of San Antonio, David R. White, Uvalde, for appellee.

McCILL, Justice.

This is an appeal from an order of the District Court of Uvalde County, 38th Judicial District, overruling the defendant, John H. Maulding's plea of privilege to be sued in Bexar County, the county of his residence.

Plaintiff in the trial court, appellee here, seeks to maintain venue in Uvalde County, under Section 7 of Article 1995, Vernon's Ann.Civ.St., because of alleged fraud committed in Uvalde County. The trial was to the court without a jury and no findings of fact or conclusions of law were requested or filed. The fraud alleged in plaintiff's original petition, paragraphs 1 to 7, is that relied on to sustain the order. This petition was incorporated in and made a part of plaintiff's controverting plea. We reproduce the material paragraphs:

'I. That prior to March 25, 1949, Plaintiff was the owner of 730 acres of land, more or less, in Uvalde County, Texas, as more fully described in deed dated November 5, 1948, recorded in Vol. 110, page 36 of the Deed Records of Uvalde County, Texas, and Defendant was the owner of approximately 919.6 acres of land adjoining said lands owned by Plaintiff, as described in deed dated December 4, 1947, recorded in Vol. 108, page 29 and deed dated January 12, 1948, recorded in Vol. 110, page 447 of the Deed Records of Uvalde County, Texas.

'II. That on said 25th day of March, 1949, and for sometime prior thereto the said Defendant represented himself to Plaintiff as a real estate broker and promoter. Said Defendant proposed that Plaintiff and Defendant subdivide their respective properties into small tracts and that said Defendant would find buyers for the lands. Under the agreement between Plaintiff and Defendant, Plaintiff was to clear roadways through the various properties, construct a house on same and remain on the premises to show the various tracts to purchasers whom Defendant would send to look at the property. Defendant agreed to send buyers to look at the property and all Plaintiff was to do was to show the property to them. In furtherance of this agreement, Defendant conveyed 51.2 acres of his land to Plaintiff for the sum of $10,000.00 as shown by deed dated March 25, 1949, recorded in Vol. 110, page 446 of the Deed Records of Uvalde County, Texas.

'III. Said Defendant represented to Plaintiff that he could and would sell said 51.2 acres of land to various buyers for at least $200.00 per acre, and that Plaintiff's ownership of said 51.2 acre tract would enhance the value of Plaintiff's other lands and greatly facilitate the sale of said other lands by Defendant.

'IV. Plaintiff alleges that in complaince with said agreement and relying upon the representations and promises made to him by Defendant, Plaintiff purchased said 51.2 acres of land for $10,000.00, built a house on the lands and cleared and graded roads on both Plaintiff's and Defendant's lands and also cleared underbrush from said lands, his total expenditures in this connection amounting to more than $5,000.00. And relying further upon said representations and promises Plaintiff went to said property daily and remained there from early in the morning until night, for the purpose of showing same to buyers whom Defendant had promised to send to look at the property, such action on his part continuing for more than fourteen (14) days. Plaintiff also made many trips to San Antonio to discuss the various matters with Defendant.

'V. That the promises and representations made by Defendant to Plaintiff were falsely and fraudulently made by Defendant for the express purpose of inducing Plaintiff to purchase said 51.2 acres of land and to induce Plaintiff to clear said lands and fix roadways. That said Defendant had no intention of carrying out his part of said agreement and immediately after Plaintiff purchased said 51.2 acres, Defendant informed Plaintiff that he would have to sell the property himself as Defendant could not and would not do so. That Plaintiff would not have purchased said 51.2 acres of land, built said house, cleared the lands and roads, stayed on said premises, nor made said trips but for the promises and representations by Defendant.

'VI. That said lands, had Defendant carried out his promises and representations, would reasonably have been worth the sum of $93,440.00, which Defendant represented to be the value thereof; but said land was actually worth only $1,536.00, to Plaintiff's damages in the sum of $92,904.00 plus the further sum of $5,000.00 expenses incurred by Plaintiff in clearing said lands and roads, plus the sum of $750.00 for the trips and time Plaintiff devoted to said agreement, a total of $98,654.00.'

Appellant's points on which he relies for a reversal are in substance: (1) There is no evidence that any fraudulent promises were made by appellant; (2) No evidence of any intention not to perform any promises that were made at the time they were made, if they were made; (3) No evidence that appellee was damaged by the failure to perform any promises that were made, if they were made; (4 to 6) Implied findings, if any, that fraudulent promises were made; that there was an intention at the time not to perform any promises that were made; that appellee was damaged by any failure to perform any promises that were made are so against the great weight and the preponderance of the evidence as to be manifestly wrong. These points have, of course, required a careful reading of the Statement of Facts. We shall briefly summarize the evidence which we deem material.

In December 1947 appellant purchased some 1600 acres of land in Uvalde County, for part purchase price of which he secured a loan of $115,000.00 which was evidenced by a note secured by lien against the property. However, 100 acres of this 1600 acres was conveyed, free of the $115,000.00 lien, to Mr. Frank Reeder, who had purchased other property adjoining the 1600 acres, and appellant executed a note for $10,000.00 which was secured by lien on this 100 acres, payable to Mr. Reeder. Apparently the purpose of this transaction was twofold-it was to serve as a bonus to Mr. Reeder for his services in procuring the loan of $115,000.00, and it was to enable appellant to show a clear title to the 100 acres, free of the $115,000.00 loan, in order to carry out his purpose of later developing it as a townsite. The first payment on this $115,000.00 loan, amounting to about $23,000.00 and interest of about $5,000.00 became due on December 10, 1948. In October or November, 1948, appellant sold 730 acres of the 1600 acres to appellee for a consideration of $20,000.00 cash and the assumption of the payment of the $115,000.00 note. There was included in this 730 acres 48.8 acres of the 100 acre tract theretofore conveyed to Reeder, and subject to the $10,000.00 note lien. Immediately after this transaction appellant discussed with appellee his (appellant's) idea of developing a townsite upon the 100 acre tract, the first development to be located on the 48.8 acres which he had sold to appellee. It was tentatively agreed that a company would be organized and there would be conveyed to it the 100 acre tract of which appellee owned 48.8 acres and appellant owned 51.2 acres, at a price of $200.00 an acre, and that at the same time the company would develop a strip of their respective lands lying along the river. According to appellee's testimony appellant was to do all the selling in San Antonio and send the prospective purchasers to appellee, who was to remain on the property and show the lots or tracts into which the land was to be divided, to them. Appellee was to lay out roads on the property and build a house on his 48.8 acres to accomplish this purpose. Appellant said he knew he could sell the property, he had a moving picture advertising system which the company was to take over and use for advertising it. After this transaction there were numerous conversations between the parties which occurred on the property and in San Antonio. The appellee cut some roads on his 48.8 acres and built a house thereon on the strength of the proposed plan to develop the 100 acres as a townsite. Appellant kept telling appellee that he couldn't sell the property in his own name as well as in another person's name, and that he was going to sell it in his (appellee's) name, and that that was the reason he kept holding back and didn't want to organize the company. In March, 1949, appellant conveyed to appellee the 51.2 acres under circumstances as reflected by the following portions of appellee's testimony:

'A. Well, of course, first he was keeping his side and I was keeping mine, and we were to develop my side first and then his side. And he was reserving a strip about 300-ft. wide for his home for himself and he asked me to reserve a strip about 300-ft. wide on my side for a homesite for myself on my acres.

'Q. Yes. And then what happened? Just tell us in your own words the details leading up to the purchase of the fifty-two acres. A. Then, of course, right about that time he slapped me on the shoulder and said I had a very big surprise coming in that day, he couldn't tell me what it was. Said, 'You wait and find out'. Of course, that was the aluminum boat with the cushions and what have you.

'Q. Well, I would still like for you to tell me, just in your own words, the entire chain of events leading up to your getting a deed to this property, or your signing a note for $10,000.00. A. Of course, it was like I said before. He was going to sell the lots in San Antonio and I was to receive the people on the property, and that, of course, was the reason I signed the note. And all I could see was buying...