Oneal v. Weisman

• Decision Date: 27 May 1905
• Citation: 88 S.W. 290
• Parties: ONEAL v. WEISMAN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

88 S.W. 290

ONEAL v. WEISMAN et al.^*

Court of Civil Appeals of Texas.

May 27, 1905.

Appeal from District Court, Collin County; J. M. Pearson, Judge.

Action by S. Weisman against George M. Oneal and others. From the judgment, Oneal appeals. Reversed in part.

Garnett & Smith, for appellant. Church & Doyle and Abernathy & Mangum, for appellees.

RAINEY, C. J.

There was a deal made between George M. Oneal and S. Weisman, by which S. Weisman transferred to Oneal blocks 29 and 30 in the town of McKinney, upon which Weisman resided, and a stock of goods, wares, and merchandise located in said town. In consideration therefor, Oneal transferred to Weisman 3,365½ acres of land in Morris county, executed his note for $1,400, and assumed the payment of two notes owing by Weisman—one for $1,600, owing to W. B. Newsome, and the other for $500, owing to L. L. Elliott. A lien was reserved on said two blocks of land in McKinney to secure the payment of said notes. The $1,400 note becoming due, and default in its payment being made by Oneal, suit was brought to recover thereon by Weisman, and to foreclose the lien, and also prayer that the said land be sold, and the proceeds be applied to the payment of all of said notes. All necessary persons were made parties to the suit. Oneal answered, setting up a failure of consideration, fraud by Weisman in making certain misrepresentations as to the stock of goods, etc. Weisman replied by alleging fraud by Oneal in making certain misrepresentations as to the value, fertility, etc., of the land, and as to the condition and volume of business done by a certain sawmill on the land, etc.

The jury returned the following verdict:

                We, the jury, find for the plaintiff
                 Weisman, in the sum of..............  $2,035 57
                Less the amount of...................     324 40
                                                       _________
                   Judgment for .....................  $1,711 17
                

Also in favor of Newsome and Elliott on the notes due them, and a foreclosure of the lien on the two said blocks of land in McKinney for all the notes due; the note of Newsome to have preference.

From this judgment, Oneal appeals.

The note due W. B. Newsome for $1,600 was executed by Weisman to Maggie Mathews. Newsome was interpleaded by both Weisman and Oneal, and there is no contention here that said note is not due and payable, nor any assignments as to the judgment not being correct as to said note. The judgment as to Newsome will therefore be affirmed.

Further discussion herein will relate to the matters between Weisman and Oneal.

Appellant objected to the admission of Weisman's testimony that Oneal told him prior to the trade that the Morris county land was good, fertile land, very productive, would raise corn, cotton, fruits, and vegetables, and was well worth $15 per acre; that there was a sawmill running daily, and it was in good order and of the value of $5,000. The objections were that plaintiff's pleadings were not verified—there being a plea of failure of consideration—and such evidence was irrelevant and immaterial, and its tendency was to prejudice the defendant's case. The rule is that, where a party is trying to effect a sale of his property, it seems, he has the right to puff the same in the most extravagant manner, and to exalt the value to the highest point the vendee's credulity will bear. The vendee in such cases is not expected to place confidence in such statements, and, if he does, it is not sufficient upon which to base an action for damages, it matters not how false they may be. Such statements are regarded as mere opinions, and the purchaser is not expected to rely thereon, but must rely on his own judgment. The foregoing is based on the proposition that the parties to a contract stand upon an equal footing, and their opportunities for knowing the facts or forming judgment as to the true condition of the property are equal. Where, however, there is a fiduciary relation existing between the parties, or where the situation of one of the parties is such that he has not an equal opportunity of forming a correct judgment and is ignorant of the true conditions, but is induced to rely upon such statements and to purchase by reason of his faith therein, then "the vendor may be held liable as for false representations, because by them the purchaser has fraudulently been induced to forbear inquiry as to their truth." Warvelle on Vendors, § 946, vol. 2. As it is difficult at times to distinguish opinions from statements of facts,...