Owen v. Al Parker Securities Co.

• Decision Date: 27 April 1927
• Docket Number: (No. 7761.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 296 S.W. 620
• Parties: OWEN v. AL PARKER SECURITIES CO. et al.
• Court: Texas Court of Appeals

296 S.W. 620

OWEN v. AL PARKER SECURITIES CO. et al.

(No. 7761.)^*

Court of Civil Appeals of Texas. San Antonio.

April 27, 1927.

On Motion for Rehearing May 25, 1927.

Further Rehearing Denied June 22, 1927.

Appeal from District Court, Cameron County; A. M. Kent, Judge.

Suit by H. B. Owen against the Al Parker Securities Company and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Graham & Graham, of Brownsville, for appellant.

Seabury, George & Taylor, of Brownsville, for appellees.

COBBS, J.

Appellant sued appellees to cancel and rescind certain deeds of conveyance to the lands in controversy and have title to the lands reinvested in A. F. Parker, one of the appellees herein, and to cancel all outstanding obligations on all the deferred promissory notes, representing the balance due as the purchase price of the land, except those held by innocent purchasers, and appellant to be charged with the reasonable rental value of said lands during time he had been in possession of same as an offset against amounts with interest plaintiff had paid on the purchase price and all amounts then unpaid on all notes in the hands of innocent holders and amounts plaintiff had paid in improvements, including taxes and water charges paid by him, and including salaries of employees and traveling expenses, with interest; to have judgment rendered in favor of the plaintiff against said defendants jointly and severally, or whichever one was shown to be indebted to plaintiff in such balance, with interest; and to establish an equitable lien on said land to secure payment of same and to foreclose the lien.

In the alternative, plaintiff sought recovery in damages in the amount of $31,581, with 6 per cent. interest per annum from 9th day of June, 1923.

It is alleged:

"That during April, 1923, the defendants Al Parker Securities Company, A. F. Parker, L. R. Beddoes, Frank R. Lucas, J. L. Parker, Mrs. L. R. Beddoes, and Mrs. A. F. Parker, acting by and through their agents, servants, and employees, or those of some one or more of them, induced the plaintiff to come from his home in Mississippi to the Rio Grande Valley with the view on the part of said defendants selling the plaintiff a portion of a certain tract of land. That the plaintiff, after reaching the valley, was taken charge of by said defendants, or some one or more of them, and shown over the valley, and his attention called to the possibilities of growing citrus fruit and farm products then being produced in said valley." And that appellees pointed out to appellant the lands in controversy, and represented that the same were as good, if not the best, citrus fruit land that could be found in the entire Rio Grande Valley and level, and, if properly drained was exceptionally good citrus fruit land, though at that time almost entirely covered by a thick growth of brush and timber. That plaintiff himself was wholly ignorant of the kinds of land suitable for the growth of citrus fruit.

Relying upon the representations so made to him, appellant purchased said land, and proceeded to improve the same and expend money thereupon. Prior to June 12, 1924, plaintiff discovered there were 4 or 5 acres of the 105.27 acres too low for the growth of citrus fruit, and called the same to appellees' attention, who agreed to, and did, partially adjust the same, and further represented to appellant and guaranteed to him that that was all the low land on the tract, and the balance was as represented, level and highly adapted to the growth and production of citrus fruit and other farm products, when properly drained. But for these representations, upon which he relied, plaintiff would not have adjusted the controversy on said 4 or 5 acres. During the summer or fall of 1925 he for the first time learned that the entire tract of land purchased from said defendants was in fact an old lake bed, which constituted a basin that holds water during wet seasons in such way and to such an extent as to absolutely destroy the value and usefulness of the said tract of land for the production and growth of citrus fruit and other farm products, such as are raised and produced in the Rio Grande Valley; all of which was well known to appellees, but not known to appellant, who for the first time made the discovery about October 1, 1925, and then elected, and thereupon attempted, to rescind the entire transaction, and offered to convey back to appellees all of said lands and improvements, and to account for the rental value of said lands, and demanded that appellees refund the money paid out as purchase price and the amount he had expended on improving the place, with 6 per cent. interest thereon. Appellees declining to do this or to otherwise adjust the controversy, appellant was compelled to file this suit.

Juan Solis, Mateo Solis, G. L. Solis, A. H. Fernandez, and W. B. Clint, being merely innocent holders of the purchase-money notes, are made parties hereto, but no personal judgment is sought against them.

The answer contained demurrers and exceptions, pleas, and alleged waiver on the part of the plaintiff to the relief sought, and plea of negligence, general denial, and especially pleading an alleged accord and satisfaction, an alleged compromise and settlement, and laches; also pleaded limitations and a denial of the representations alleged by plaintiff to have been made to him.

Plaintiff took a nonsuit against Frank R. Lucas.

The case was tried with a jury, and the trial proceeded until the 6th day of November, when plaintiff finished the introduction of testimony. Whereupon the defendants Al Parker Securities Company, A. F. Parker, Mrs. A. F. Parker, L. R. Beddoes, Mrs. L. R. Beddoes, J. L. Parker, and W. B. Clint moved the court to instruct the jury to return a verdict against the plaintiff in favor of said defendants, whereupon the court, over objections of plaintiff, so instructed the jury, and the jury returned their verdict accordingly, and the court thereupon entered his judgment in favor of said defendants and against the plaintiff.

The case having been tried with a jury, and the court having instructed the verdict, if error, it was fundamental, requiring us to review the entire record, whether other errors are assigned or not.

The contract for the sale of the lands and the deeds of conveyance thereof were made during the month of June, 1923.

The basis of appellant's claim is that the land lies, partly at least, in a basin, and not as appellees represented it to be. Appellant had obtained his deeds prior to September, 1923, at which time he put E. B. McDonald, an employee, in charge of the land for the purpose of clearing the same of brush and cactus for the purpose of planting crops and citrus fruit. McDonald, being informed that the land was low, and that water stood in it, and that there was a duck pond on it, promptly advised appellant of its condition and what old settlers said about it; that it was not citrus fruit land. Appellant many times prior to June 12, 1924, inspected the land, consulted and advised with said McDonald with reference to his operations. McDonald advised him by letter and correspondence, and continued to advise him in reference to the unsuitableness of the land for the purposes for which it was purchased; that rain had fallen upon the land, and as much as 10 or 20 acres had been under water; and that on June 12, 1924, a rain had fallen, and as much as...