Medley v. Lamb

• Decision Date: 08 May 1920
• Docket Number: (No. 9055.)
• Citation: 223 S.W. 1048
• Parties: MEDLEY v. LAMB et al.
• Court: Texas Court of Appeals

Page 1048

223 S.W. 1048

MEDLEY v. LAMB et al.

(No. 9055.)

Court of Civil Appeals of Texas. Ft. Worth

May 8, 1920.

Rehearing Denied June 19, 1920.

Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.

Suit by Mrs. E. Morgan Lamb and husband against George W. Medley. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

A. H. Kirby and Theodore Mack, both of Ft. Worth, for appellant.

Slay, Simon & Smith and Ocie Speer, all of Ft. Worth, for appellees.

CONNER, C. J.

The appellee Mrs. E. Morgan Lamb, joined by her husband, instituted this suit against George W. Medley to recover damages in the sum of $50,000 based upon alleged false and fraudulent representations made by appellant in an exchange of properties between the parties.

It was alleged that the plaintiffs were the owners of some 206 acres of land situated near the city of Ft. Worth, Tex., of the agreed value of $76,310, which had been conveyed to the defendant for 600 acres of land in Chaves county, N. M., valued at $60,000, and by him conveyed to the plaintiffs. It was charged that the defendant represented the New Mexico land to be—

"fine agricultural land; that the same was very rich and fertile and exceedingly valuable for agricultural purposes; that the same was good alfalfa land and that there was then 200 acres of alfalfa planted and set on said land, which would make the same very productive and profitable, and was actually worth $60,000."

It was further alleged that the defendant and his agents further represented that the New Mexico land had the advantage of an irrigation system—

"implying and intending thereby to convey to plaintiff the idea and to represent that the condition of said land was such that no drainage was necessary, and fraudulently concealed from plaintiff and her husband the fact that the same was included within a drainage district, and in truth and in fact the land was then underlaid by a stratum of water not far from the surface, and, the soil being full of alkali, the land was thereby made unfit for successful farming and less suitable for farming than it otherwise would have been."

It was further charged that the defendant represented that the only indebtedness existing against his land in New Mexico was a lien to secure a loan of $10,000 by an insurance company, and a further sum of $100 due as commissions, but that as a matter of fact all the representations so made were false and fraudulently made for the purpose of inducing the plaintiffs to enter into such contract, and that the same did induce them to do so; that in truth the land was not fine agricultural land; was not actually worth more than $10,000; that it had been included in a drainage system, which thereby imposed a further lien upon the same of about $16,383.11.

The defendant answered by general and special demurrers, a general denial, the plea of two years' limitation as against the fraudulent representations, and specially that John Lamb, the husband of plaintiff Mrs. E Morgan Lamb, made an independent personal inspection of the New Mexico land for his wife, and that the plaintiffs were therefore not deceived as to the character of the land.

The case was submitted to a jury upon special issues, all of which were answered in favor of the plaintiffs. The court also made further findings, and upon the findings and answers of the jury judgment was awarded to the plaintiffs in the sum of $48,500, from which judgment the defendant has duly appealed.

The assignments are numerous, but the most material ones involve the question of whether the plaintiffs' pleadings are sufficient to support the measure of damages as submitted to the jury and as awarded by the court. In rendering judgment, the court estimated the land of the defendant in New Mexico as of the value of $10,000, and estimated the value of certain farming machinery, etc., received by plaintiffs, and also included in the exchange, at $1,500. The value of plaintiffs' land, situated in Tarrant county, was by the court valued at the sum of $76,310. The pleading that appellees set forth in support of their contention that the proper measure of damages was sufficiently alleged is as follows:

"That heretofore, on, to wit, the 15th day of February, A. D. 1915, plaintiff and defendant made and entered into a written contract whereby the defendant agreed to sell and convey to this plaintiff 600 acres of land situated about two miles east of the town of Dexter, Chaves county, N. M., a more particular description of which is hereto attached and marked Exhibit A and made a part hereof, the same to be sold and conveyed to the plaintiff at and for the consideration and price of $60,000, which this plaintiff was to pay the defendant by conveying to him 206 acres of land just outside of the city limits of Ft. Worth, Tarrant county, Tex., at the agreed value of $76,310."

Reference is also made by the appellees to the preliminary contract in writing made by the parties before the exchange was finally consummated, and also to the deed from the defendant to the plaintiffs, but neither of these instruments add any force to that part of plaintiffs' petition that appellees set forth, and which we have quoted.

It seems quite plain to us that the plaintiffs' petition does not furnish a sufficient basis for the proper measure of damages in this case. It is the "agreed value" of the Texas land that is given in the pleadings, and, as alleged, the New Mexico land was merely "to be sold and conveyed to the plaintiff at and for the consideration and price of $60,000." No reference whatever is made to the value of the personal property conveyed by the defendant to the plaintiffs in the exchange. The general rule established and maintained from an early date is that the allegations of a plaintiff's petition must be sufficient to constitute a legal basis on...