Medford v. Kimmey

• Decision Date: 05 July 1927
• Docket Number: (No. 1564.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 298 S.W. 140
• Parties: MEDFORD v. KIMMEY et ux.
• Court: Texas Court of Appeals

Page 140

298 S.W. 140

MEDFORD v. KIMMEY et ux.

(No. 1564.)^*

Court of Civil Appeals of Texas. Beaumont.

July 5, 1927.

Rehearing Denied September 21, 1927.

Appeal from District Court, Angelina County; C. A. Hodges, Judge.

Suit by A. P. Kimmey and wife against G. A. Medford. Judgment for plaintiffs, and defendant appeals. Affirmed.

Guinn & Guinn, of Rusk, and W. S. Poston and C. W. Falvey, both of Lufkin, for appellant.

Mantooth & Denman, of Lufkin, for appellees.

WALKER, J.

This suit was instituted by appellees Mr. and Mrs. A. P. Kimmey against appellant G. A. Medford to reform their timber deed to him, which, on its face, granted "all the merchantable timber now standing," etc., upon the land described in the deed. This land was Mrs. Kimmey's separate property. As grounds for the reformation prayed for, appellees alleged that the contract between them and appellant covered only the tie timber; that appellant was to and did prepare the deed, and when presented to them for execution represented that it was prepared according to the terms of the contract and conveyed only the tie timber; that believing and relying on his representations, they executed and delivered him the deed and did not discover the mistake in the property granted until appellant began cutting the merchantable timber other than the tie timber. It is a sufficient statement of appellant's pleadings to say that he pleaded the usual demurrers, general and special denial, and that appellees knew the contents of the deed, or could have known it, in the exercise of ordinary care.

"Did the plaintiffs intend to sell the defendant all the timber on the land?" was the only question submitted to the jury, which was answered in the negative. On this verdict judgment was entered in favor of appellees against appellant reforming the deed so as to grant only the merchantable tie timber. From this judgment appellant has prosecuted his appeal.

By the first, third, and ninth assignment appellant complains of the refusal of his peremptory instruction, the refusal to set aside the verdict as being without support in the evidence, and the rendition of the judgment in appellees' favor on the verdict of the jury. These assignments are without merit. The weight of the evidence sustains the allegations of appellees' petition, clearly raising the issues for the jury that the contract included only the tie timber; that appellant was to and did prepare the deed, and when offered by him to appellees for execution represented that it was prepared according to the contract and granted only the tie timber; that appellees, believing and relying on these representations executed and delivered the deed to appellant. These issues made out a case in appellees' favor which it was the court's duty to submit to the jury. A failure to read the deed or to exercise care in any other particular respect to learn its contents before executing the same did not, on the conclusions above stated, constitute a defense as a matter of law. Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; Wilkins v. Dagle (Tex. Civ. App.) 265 S. W. 918; Tyrrell-Combest Realty Co. v. Mullen (Tex. Civ. App.) 268 S. W. 1013.

In the Kelley Case, it was said:

"Where a written instrument fails to conform to the agreement between the parties in consequence of * * * the mistake of one party and fraud of the other, a court will reform the instrument so as to make it conform to the actual agreement between the parties."

The court did not err in rendering the judgment on the verdict of the jury. If the fact found by the jury was not within itself sufficient to support the judgment, under article 2190, Rev. St. 1925, all issues not submitted and not requested are deemed as found by the court in such manner as to support the judgment, if there is evidence to sustain such findings, and, as already said, the evidence in this case abundantly supports all conclusions necessary to sustain the judgment in appellees' favor.

By the second, fourth, fifth, and sixth assignments appellant complains of the court's refusal to submit certain special charges. Appellees' first exception to these assignments is that they are too general and present nothing for review. Their general form is as follows.

"The court erred in refusing to give special charge No. 2, requested by the defendant."

These assignments are submitted on appropriate propositions supported by...