Parker v. Solis

• Decision Date: 18 November 1925
• Docket Number: (No. 7430.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 277 S.W. 714
• Parties: PARKER v. SOLIS et al.
• Court: Texas Court of Appeals

277 S.W. 714

PARKER v. SOLIS et al.

(No. 7430.)^*

Court of Civil Appeals of Texas. San Antonio.

November 18, 1925.

Rehearing Denied December 9, 1925.

Appeal from District Court, Cameron County; W. B. Hopkins, Judge.

Suit by G. L. Solis and others against A. F. Parker. From a judgment for plaintiffs, defendant appeals. Affirmed.

Wells & Galbraith, of Brownsville, for appellant.

Graham & Graham, of Brownsville, for appellees.

COBBS, J.

Appellees filed this suit against appellant A. F. Parker and A. N. Roach for the rescission of a contract for the sale of land, or in the alternative to recover damages which occurred through accident, or actual fraud perpetrated by defendants, or by one of them, on plaintiffs and their agent and attorney in fact, by incorporating a certain 4.19 acres of land in a deed.

The facts upon which the cause of action is predicated are substantially that—

"Prior to January, 1923, appellees were the owners of a certain tract of land embracing approximately 934.85 acres located in Cameron county. After some negotiations between appellees and appellant, it was mutually agreed that appellant would purchase portions of said tract of land from appellees under certain conditions and stipulations later embodied in a written contract for purchase and sale of date March 24, 1923, which contract is set out in the statement of facts, and which contract obligated the appellant to purchase at $90 per acre all the lands in the above-referred to tract, except certain deductions named in the contract, among which was `all lands too high to be irrigated by gravity' (and in this connection it should here be stated that the 4.19 acres over which this controversy arose is not subject to irrigation by gravity, as shown by all the evidence on the trial of this cause), appellant agreeing to pay for the preparation of all deeds, releases, and other instruments necessary to be executed in making conveyance of the property, said property to be deeded and paid for in certain installments provided for in said contract.

"In contemplation of the execution of this contract of March 24, 1923, but before its execution, in order to facilitate the carrying out of its terms, appellees executed a power of attorney to one A. H. Fernandez, authorizing said Fernandez to bargain, grant, sell, and convey the above-referred to tract of land. Acting under this power of attorney, Fernandez executed the contract with appellant of date March 24, 1923, above referred to, and appellant began the carrying out of said contract; he calling upon Mr. West at Brownsville from time to time for preparation of deeds according to the contract, when Mr. West would prepare same, attach notes ready to be executed by appellant, and turn deeds and notes over to Mr. Fernandez, who would execute the deeds for appellees and then send both deeds and notes to appellant at the La Feria Bank with instructions to deliver the deeds upon execution of the notes.

"Some time after the execution of the contract of March 24, 1923, it was orally agreed by and between appellant and appellee G. L. Solis that block 49, the old Solis home site, should not be taken by appellant under his contract of March 24, 1923, but that Solis could keep the same for a dairy farm, which Solis then informed appellant he was going to do, and which appellant agreed to let Solis do; block 49 being especially favorable for this purpose inasmuch as a good well of water and a good high building site was located thereon.

"After this conversation and agreement, and after Solis had contracted the purchase of a herd of dairy cattle and had placed a barn and other improvements on the 4.19 acres out of block 49, and without the consent or knowledge of G. L. Solis or any of the appellees, appellant called upon Mr. West to prepare a deed to the 4.19 acres of block 49, and Mr. West, though he knew of the oral agreement above referred to, but not remembering it at the time, prepared the deed as requested by appellant and turned the same over to Fernandez, who had never learned of said agreement to exclude the 4.19 acres from appellant's purchase contract above referred to, and in ignorance of same executed the deed to appellant and sent it to appellant as he was accustomed to do with other deeds. Whereupon appellant deeded said 4.19 acres of block 49 to one A. N. Roach.

"As soon as appellees learned of this, they endeavored to get an adjustment of the matter with appellant, by either having the 4.19 acres conveyed back to them, or by being compensated for their damages, and upon no adjustment being made, this suit was filed, wherein it was alleged that the deed from appellees to appellant of the 4.19 acres was executed `through accident of the draftsman in preparing said deeds, or resulted from the mutual mistake on the part of these plaintiffs and those acting for them and on the part of the defendants and each of them, or that said 4.19 acres of land was incorporated in said deed through actual fraud perpetrated by the defendants or one of them on the plaintiffs and their agent and attorney in fact'; appellees seeking rescission of the deed from them to appellant or in the alternative damages."

After the trial began, the evidence developed that Fernandez had accepted payment of a portion of the purchase price of said 4.19 acres of land from A. N. Roach, who developed to be an innocent purchaser, and thus made rescission impossible. Whereupon appellees dismissed as to Roach and elected to pursue their cause in damages against the appellant, and upon trial of the cause obtained the verdict.

The case was tried with a jury upon special issues submitted by the court, and judgment was rendered against appellant in favor of appellees in accordance with the verdict of the jury.

Appellant has filed numerous assignments and propositions, to many of which appellees have filed vigorous objections to our considering. We shall not pass upon them in detail and will only consider such assignments and propositions properly raised here that were preserved in the court below, for we believe this the way that the heart of the rules for good briefing tends.

Appellant's contention, tersely stated and boiled down to the multum in parvo of his case by him, is:

"Appellant contends three reasons exist why it was fundamental error for the court to enter the judgment he entered:

"(1) There can be no recovery in money damages in a case of mutual mistake where the rights of an innocent third party have intervened, and the parties cannot be put back in statu quo.

"(2) That appellees, by their acceptance of part of the purchase price of the land, ratified and confirmed their deed after suit was filed and were estopped to proceed in damages, or for recovery of the land itself.

"(3) Damage done, if any, which is denied, was directly caused by the negligence or omission of an agent of appellees and appellees themselves, and for that it is scarcely necessary to state appellant is not pecuniarily responsible.

"In fairness to this court, appellant should here state, and does, that practically his entire case revolves around this assignment."

While the first proposition in its general statement may be conceded, is it applicable here? While Roach was an innocent purchaser from Parker, to whom this doctrine would apply and protect, that doctrine was conceded by appellees in dismissing this case against him. That left Parker alone in the case, against whom no specific performance could be had, because he had placed himself where he could not recover by his conveyance to Roach. So then the only remedy left to appellees was one of damages for the alleged tort. Appellant was not guilty of any actionable fraud, only of fraud in law. He was a party to the sales contract. He knew that the 4.19 acres of land conveyed to him by the agents of appellees were in violation of the express agreement with appellees and contrary to his positive instructions to his attorney, West, who was...