Murph v. Foxworth

• Decision Date: 16 April 1936
• Docket Number: No. 10197.,10197.
• Citation: 93 S.W.2d 817
• Parties: MURPH v. FOXWORTH.
• Court: Texas Court of Appeals

Page 817

93 S.W.2d 817

MURPH v. FOXWORTH.

No. 10197.

Court of Civil Appeals of Texas. Galveston.

April 16, 1936.

Error from District Court, Harris County; Chas. E. Ashe, Judge.

Action by L. E. Foxworth against C. H. Murph. To review an adverse judgment, the defendant brings error.

Affirmed.

Mark M. Carter, of Goose Creek, for plaintiff in error.

Vernon Coe, of Austin, and Kemper, Hicks & Cramer, of Houston, for defendant in error.

GRAVES, Justice.

Foxworth sued Murph for a rescission and cancellation of a contract of sale between them, dated March 4, 1932, whereby the former agreed to buy from the latter a one-half undivided interest in the Purity Ice Cream Company of Goose Creek in Harris county—inclusive of its merchandise, equipment, and good will—at an agreed purchase price of $3,000, of which one-half had been paid in cash and the other one-half evidenced by fifteen $100 notes; also a subsequent agreement whereby Foxworth likewise gave Murph six $100 notes as representing one-half of the purchase price of some additional machinery. The declared upon cause of action for a rescission and cancellation was based upon elaborately stated allegations of false and fraudulent representations alleged to have been knowingly made at the time by Murph for the purpose of inducing Foxworth to enter into the agreement, it being likewise charged that the latter relied upon them exclusively, would not have made the agreement if he had not, and that they misled, deceived, and visited actual damage upon him to the estimated extent of $4,000.

Murph answered by general demurrer, general denial, and a special defense to the effect that, if the statements so alleged to have been made by him were false as represented, they related to matters of opinion upon future events and not upon present or past ones, that there had been no fiduciary relations between the parties, and that he (Murph) neither concealed, nor made effort to conceal, any of the facts from Foxworth, and that all transactions and things complained of were equally open to them both; hence there could have been no actionable fraud in them.

The fact issues thus raised were submitted in great detail to a jury upon special issues, all of which were answered in Foxworth's favor, a finding under one of them being that the value of the one-half interest in the business at the time of the purchase had in fact been only one-half of what Foxworth had so agreed to pay for it; the trial court, upon this special verdict and the law and facts as found by it entered judgment in Foxworth's favor, decreeing the cancellation and annullment of the entire transaction, inclusive of the two series of $100 notes aggregating $2,100, that he recover from Murph $1,500, with interest thereon from March 7, 1932, and that Murph recover nothing upon his cross-action.

The appeal challenges the action so taken below upon a number of assignments and propositions, all of which are found to be merely abstract statements of law— without concrete application to this controversy—which are not entitled to consideration at this court's hands; however, if they were considered, it is thought that none of them require a reversal of the judgment rendered.

In the first place, while, as stated, the findings of the jury went into all of the details of the alleged fraudulent representations, determining each and all of them in Foxworth's favor, there is no assignment nor proposition in the record challenging the sufficiency of the evidence to support any one of such findings, wherefore they must stand in this court as established facts; it is plain, however, that the appeal first undertakes to show that there were no legally sufficient averments below to constitute actionable fraud, and to this end a part only of the declared upon representations are quoted in the brief; but, when these averments are looked to in full, it seems plain to this court that they furnish ample basis under the verdict for the judgment rendered; while it is not deemed necessary, this résumé of them shows their major features:

"Defendant represented to plaintiff that he had been engaged in manufacturing and selling ice cream for a period of two years in the City of Goose Creek. That the profits accruing to plaintiff from conducting the business of which plaintiff was buying a one-half interest would be sufficient to pay the $100.00 installments on said notes as they became due. That the profits from said business during the season of 1932 would be sufficient, not only to pay the $100.00 installments each month as they matured, but also would be sufficient to reimburse plaintiff for the whole amount of money that he was to place in said business; that Murph before or at the time of the purchase by Foxworth of a one-half interest in the Purity Company represented to plaintiff that Murph could set the wholesale business in the Tri-cities if he was financially able to handle it, and that he would be financially able to handle it with the additional capital that plaintiff was putting into the business; that there was no competition in the Tri-cities to fear in the sale of ice cream; and that the San Jacinto Creamery was not doing enough ice-cream business to consider; that plaintiff relied upon such representations, and as a result of such false and fraudulent representations so made by the defendant, paid the sum of $1,500.00 in cash, and executed said note in the sum of $1,500.00. With reference to the execution of the $600.00 note, it is alleged that plaintiff executed a note in the sum of $600.00, relying upon the representations made by the defendant aforesaid, which defendant reiterated at the time of the purchase of the said additional equipment, and plaintiff consented to the purchase of said frigidaire equipment upon the representations aforesaid and upon the representations made by the defendant at the time of the purchase of said equipment, that same was necessary in the business, and that by the purchasing of same the Purity Company would be able to secure an additional amount of business in the nature of retail trade, to...