Patterson v. Bushong

• Decision Date: 04 June 1917
• Docket Number: (No. 8605.)
• Citation: 196 S.W. 962
• Parties: PATTERSON v. BUSHONG et al.
• Court: Texas Court of Appeals

196 S.W. 962

PATTERSON v. BUSHONG et al.

(No. 8605.)

Court of Civil Appeals of Texas. Ft. Worth.

June 4, 1917.

Rehearing Denied June 30, 1917.

Appeal from District Court, Tarrant County; Mike E. Smith, Special Judge.

Suit by Mrs. Hattie J. Bushong and husband against G. R. Patterson. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Samuels & Brown and Durward McDonald, all of Ft. Worth, for appellant. Peden & Lipscomb, Slay & Simon, and Theodore Mack, all of Ft. Worth, for appellees.

BUCK, J.

On January 15, 1915, Hattie J. Bushong, joined by her husband, J. L. Bushong, sued G. R. Patterson, and for cause of action alleged: That plaintiff Hattie J. Bushong was the lawful owner in her own separate right of certain described property situated in Tarrant county, consisting of hotel property known as the "Mohawk Hotel," residence property on Pruitt street, both in the city of Ft. Worth, and 188.2 acres known and described as the T. C. U. property, the latter being a farm upon which plaintiffs resided, used as a farm and dairy. Plaintiff alleged that the market value of said Mohawk Hotel property, over and above all incumbrances then existing, was $35,000, and the market value of the other two described tracts was $22,500, over and above all incumbrances then existing; that G. R. Patterson was the owner of 3,000 acres of land situated in Dimmitt county, described by metes and bounds, and that said Patterson, and his agents, servants, etc., through false and fraudulent representations induced plaintiff Hattie J. Bushong to convey to him by warranty deeds all the land situated in Tarrant county above described in exchange for the Dimmitt county lands, and by said false and fraudulent representations induced her to execute and deliver to Patterson notes aggregating $62,500, said notes being made payable to said Patterson.

The specific representation relied on, and which plaintiff alleged to have been made to her by defendant, Patterson, or his agent, and which she alleged to have been fraudulent, was that the Dimmitt county land was actually worth the sum of $40 per acre at the time of the making of said trade or exchange of properties, and that said representation of value was a representation of fact and was false and fraudulent, and that the land was worth not more than $10 per acre. Other allegations were made as to asserted fraudulent representations made by defendant, or his agents, to the effect that lands of the same character and kind and in the vicinity of defendant's land, which he sold to plaintiff, were selling at the time of said transaction for $40 to $60 per acre, etc., but for the purposes of this opinion we limit our discussion to the allegation as to the alleged statement by defendant as to what the land was actually worth.

Plaintiff alleged that she resided in Ft. Worth and was not acquainted with the value of lands in the vicinity of the Dimmitt county land, and lived some 400 miles distant from said land, and that she relied particularly upon the alleged representation made to her by defendant, or his agents, as to the said value. It was further alleged that since the exchange of lands had been effected defendant had negotiated said notes amounting to $62,500 to one J. B. Wilson, who was made defendant, and had placed it beyond the power of the court to award her a rescission of said contract and sale and a cancellation of said notes. But it was averred that the defendant Wilson had other security given to him by said defendant Patterson to secure the payment of Patterson's debt to him, and plaintiff prayed that Wilson be required to exhaust such other security before using said notes executed by plaintiff to satisfy said debt. It was further alleged that defendant Patterson was insolvent, and plaintiff prayed for the fixing of an equitable lien on the property conveyed by her to Patterson to secure her in the payment of such damages as might be awarded.

Defendant Patterson answered by general demurrer and general denial, and specially denied any fraudulent purpose on his part, but admitted that he had stated and represented to the plaintiff that in his opinion the Dimmitt county land was worth $40 per acre, and averred that said land had really a higher money value than $40, if improved and subdivided, properly advertised, etc. He further pleaded negotiations between him, represented by his agent, A. R. Forsyth, a real estate broker of San Antonio, Tex., and the plaintiffs, represented by the Winters Realty Company and the Winter-Foster Company, each company in turn also being represented by H. E. Barnett. He further alleged the execution by plaintiff of one promissory note for $25,000, dated November 3, 1913, in which was reserved a vendor's lien on the south 1,500 acres of the Dimmitt county land, and a further note in the sum of $37,500, dated December 24, 1913, retaining a vendor's lien on the north one-half of the Dimmitt county 3,000-acre tract, and the failure of plaintiffs to pay the interest due on said notes, and defendant prayed for foreclosure of said lien on the above two tracts of land, and that it be sold to satisfy his debt. He further pleaded that on September 18, 1914, he had delivered as collateral to J. B. Wilson, of Dallas county, Tex., the notes sued upon, among other securities, to secure a certain loan of $50,000 due five years after date, bearing interest at 8 per cent., and that he, defendant Patterson, prosecuted this action for himself and for said Wilson, as their interest might appear, and prayed for relief for himself and Wilson, generally and specially.

Further pleadings were filed in the case, but we think we have stated sufficient above to indicate the issues presented.

On July 6, 1915, the cause came on for trial and was submitted to the jury on special issues, which were answered substantially for defendant Patterson. Verdict was received in open court by the judge and ordered recorded, and defendant Patterson filed his motion for judgment, which motion was by the court overruled, "because the court is of the opinion that the findings of the jury are so conflicting that no valid judgment can be rendered thereon." Defendant excepted to this order, and on July 13, 1916, filed his assignments of error directed to the action of the court in refusing judgment.

On April 4, 1916, plaintiff filed her second amended original petition covering some 18 pages of the transcript. On April 10th defendant Patterson filed his second amended answer, covering some 12 pages of the transcript. The cause was submitted to the jury on special issues again, and the jury found: (1) That the property conveyed by Mrs. Bushong to the defendant Patterson was her own separate property; (2) that Mrs. Bushong "prior to the time she conveyed said property, authorized her husband, J. L. Bushong, either alone or in conjunction with the J. N. Winters Realty Company, or H. E. Barnett, to represent her in the transaction leading up to and culminating in the transactions whereby there was conveyed to said Patterson the property situated in and near Ft. Worth, as described in the pleadings"; (3) that the defendant G. R. Patterson, through his agent, A. R. Forsyth, represented to plaintiff Hattie J. Bushong at and before the execution of the deeds and notes by her that the land belonging to said Patterson in Dimmitt county was on November 3 and December 31, 1913, worth $40 per acre, and that such representation was made as a statement of a fact and was false; (4) that Mrs. Bushong believed said representations to be true and relied thereon, and that said representations induced her to execute the deeds and notes aforesaid; (5) that the reasonable market value of the south 1,500 acres of the Dimmitt county land on November 3, 1913, was $15 per acre, and the reasonable value of the north 1,500 acres on December 31, 1913, was $17 per acre; (6) that the reasonable market value of the Mohawk Hotel property on November 3, 1913, was $50,000, and the reasonable market value of the Pruitt street property was $12,000, and the reasonable market value of the T. C. U. farm on December 31, 1913, was $200 per acre. Upon this verdict the court rendered judgment for plaintiff against defendant Patterson in the sum of $50,500, being the difference in value found between the property conveyed to Patterson by Mrs. Bushong, including the $62,500 notes, and the value of the property conveyed by Patterson to plaintiff, with 6 per cent. interest from date and costs of suit. The judgment further decreed plaintiff an equitable lien upon the property conveyed by Hattie J. Bushong and husband to the defendant Patterson. Judgment was given to defendant Patterson against J. L. Bushong and Hattie J. Bushong for $14,033.80, said judgment providing that defendant should not be entitled to process to enforce the collection thereof unless and until he satisfied the judgment in favor of the plaintiff Hattie J. Bushong against him for the sum of $50,500, either by placing a credit to that extent on the notes of the said Hattie J. Bushong, transferred by Patterson to Wilson, or by paying off and discharging the indebtedness due by him (Patterson) to said Wilson. It was further provided that, should Patterson make default in the payment of interest maturing on the $50,000 note held by Wilson, dated September 18, 1914, and should said Wilson lawfully and because of said default elect to declare said note due and payable, or if said defendant Patterson should make default in the payment of principal or interest, or any part of same, of the indebtedness now existing upon the property conveyed by plaintiffs to the defendant Patterson, and the holder or holders of said indebtedness secured by said liens on said property theretofore conveyed by the Bushongs to Patterson should, because of said failure on Patterson's part, elect to declare said indebtedness due, then said Hattie J. Bushong should be...