Merrill v. Taylor

• Decision Date: 14 December 1888
• Citation: 10 S.W. 532
• Parties: MERRILL <I>v.</I> TAYLOR <I>et ux.</I>
• Court: Texas Supreme Court

10 S.W. 532

MERRILL

v. TAYLOR et ux.

Supreme Court of Texas.

December 14, 1888.

Appeal from district court, Gregg county; WILLIAM STEDMAN, Special Judge.

Action by Granville Merrill against William H. Taylor and Fidelia Taylor, his wife, to enforce a vendor's lien on certain land. Judgment for defendants, and plaintiff appeals.

John M. Duncan, for appellant.

WALKER, J.

This is a suit filed June 4, 1884, by Merrill against W. H. Taylor and Fidelia Taylor, husband and wife, to recover the sum of $3,205 and interest, balance due on five vendor's lien notes executed on June 20 1881, by appellees in favor of A. B. and S. A. Merrill, and afterwards by the latter indorsed to appellant, and to foreclose the vendor's lien retained to secure same on certain lands in plaintiff's petition described. Defendants below answered by demurrer general denial, and specially that the consideration for the notes had wholly failed, which plea of failure of consideration was, in substance, as follows: That defendants were, before the purchase, residents of another state, and were led to the purchase by newspaper advertisement, by A. B. Merrill, which offered a fine farm, a lot of personal property, hogs, cattle, etc., for sale, and placing a high value on same; that defendants saw Merrill, and he made representations to them about the quality of the land, amount and value of personal property, etc., which were intended to deceive defendants, and which were untrue; that upon such false representations the purchase was made, notes executed, and defendants came into possession; that the sale included a lot of farm belongings, besides horses, hogs, cattle, etc., all of which were found to be far short of representation in quantity and value; that defendants had paid, at the time of the sale, on the purchase price of the whole property, $2,000 cash, which was more than the whole property bought was worth; and they pray that the notes sued on be canceled, etc. To this answer plaintiff below filed a reply, alleging, in substance, that there was no fraud practiced; that both defendants went upon the land and viewed all the property before they purchased, paid any money, or executed the notes; that they made payments on the notes long subsequent to moving on the land, and taking possession of all the property, without ever claiming failure of consideration, or expressing dissatisfaction; that the bill of sale to the personalty recites the cash, $2,000, received for the personalty, and conveys the property in the terms "more or less." Upon these issues the case was tried and verdict and judgment rendered for defendants, and plaintiff appeals.

The above statement, which is full, is adopted from brief of appellant. The court charged upon the defense. "If you believe from the evidence that the said A. B. Merrill made to the defendants any representations touching the condition of said tracts of land, as to the fences thereon, the number and condition of the houses thereon, the quantity of the open land on said tracts, and the condition of said open land as to a state of cultivation, and of other matters appendant and connected with said tracts of land, and that such representations were made by means of an advertisement printed in a newspaper published in the city of Cincinnati, in the state of Ohio, or by verbal statements to the defendants, or both, and that said representations were not true, but overstated the condition of said fences, the quantity of open land, the number and condition of the houses, and the amount and quantity of other matters and things, then you will ascertain the value of said...