Ray v. Barrington

• Decision Date: 16 June 1927
• Citation: 297 S.W. 781
• Parties: RAY et al. v. BARRINGTON.
• Court: Texas Court of Appeals

297 S.W. 781

RAY et al. v. BARRINGTON.

Court of Civil Appeals of Texas. Waco.

June 16, 1927.

Rehearing Denied September 8, 1927.

Appeal from District Court, Navarro County.

Suit by Thad A. Barrington against D. W. Ray and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Lawrence Treadwell, of Corsicana, for appellants.

Looney & Stout, of Ennis, for appellee.

GALLAGHER, C. J.

Appellee, Thad A. Barrington, brought this suit against appellants D. W. Ray and Mrs. Ethel Irene Watson to recover the value of 44.37 acres of land, which he alleged was the amount of shortage in a certain tract conveyed to him by appellants. Appellee alleged that said tract was sold to him by the acre; that the same was represented to contain 300 acres; that the price agreed upon was $20 per acre; that he had never seen the land prior to his purchase of the same and relied wholly on such representation as to the quantity thereof; that such representation was false, and that said tract contained only 255.63 acres. Appellee charged that appellant Ray, who negotiated the sale of said land for himself and for Mrs. Watson, who is his sister, knew said representation was false and made the same with intent to defraud him out of the value of such shortage, which he alleged to be $887.40. Appellants denied that said land was sold by the acre and alleged affirmatively that the same was sold in gross. They also denied that they made any representations concerning the number of acres in said tract and alleged affirmatively that they did not know the acreage contained therein. All the facts leading up to the consummation of the said sale were alleged in detail by the parties according to their respective contentions.

Appellants owned the tract of land conveyed by them to appellee. The same was part of a larger tract owned by them. Appellant Ray also owned two smaller tracts lying immediately south of the same. All said lands were situated in a proposed levy district. Guy M. Gibson, John H. Sharp, and James M. Baldridge were interested in promoting said district and owned a large quantity of land in that vicinity. Ray was dissatisfied with the situation and proposed to sell all said lands lying within the boundaries of the proposed district to said three parties. A contract for the sale of the same was drawn and signed by said Ray for himself and Mrs. Watson and by Gibson. Sharp declined to sign the same, and it does not appear that it was ever presented to Baldridge. Said contract described the land afterwards conveyed to appellee as follows:

"First Tract. 300 acres of land, more or less, on the Elijah Powers survey in said county, and being off of the S. end of 353.7-acre tract conveyed to the said Ray and Watson by A. Fox, and being all of said tract of land, which lies S. of the line running from the N. W. corner of what was formerly the Honeycutt 164¾-acre tract S. 60° W. to the W. line of said survey; consideration for said tract being $6,000.00."

Gibson tesified in this connection, in substance, that he agreed with appellant Ray to purchase said first tract of land at the rate of $20 an acre or $6,000 for the 300 acres. Ray testified that the price agreed upon was $6,000 for the entire tract regardless of acreage. Gibson was a brother-in-law of appellee. He approached him as though he was the agent of the appellants and proposed that appellee purchase said first tract, representing the same to contain 300 acres and stating that it could be purshased at $20 an acre. Appellee finally agreed to purchase the same on said terms, and signed an addendum to said contract in which it was agreed that appellants should convey said tract direct to appellee. Appellant Ray testified in this connection that he understood thereby that the trade was switched from Gibson and his associates to appellee. Another party at the same time agreed to purchase the other two tracts, and appellant Ray was to deed the same direct to him. Said transaction is not involved herein. The deed conveying said tract of land to appellee was drawn by appellant's attorney. It described the land by metes and bounds, but an error in one of the calls made the tract conveyed appear to be larger than it really was. Said description by metes and bounds concluded with the words, "and containing 300 acres of land, more or less." The evidence shows without dispute that at the time said trade was consummated and before said deed was delivered, appellee raised a question as to the meaning and effect of the words "more or less" qualifying the recited acreage, and was told by his own attorney in the presence of appellants' representative that that expression was meant to cover a variation of an acre or two between different surveys of said tract. Thereafter appellants' representative delivered the deed and accepted the cash payment and a note for the deferred payment. This note was afterwards transferred to a third party and paid by appellee. Such further recital of the pleadings of the parties and the evidence introduced as may be necessary to a proper understanding of the issues of law hereinafter discussed will be recited in connection therewith.

The cause was submitted to a jury on special issues and the jury found, in substance, as follows: (1) That the tract conveyed was 44.37 acres short of 300 acres; (2) that appellee was buying said land and appellant Ray selling the same by the acre, at a price of $20 per acre; (3) that said sale was not in gross at a price of $6,000; (4) that Ray represented to Gibson that he, Ray, would take $20 an acre for the land, and that it contained 300 acres; (5) that Gibson told appellee that he, appellee could buy the land at $20 an acre, and that said tract contained 300 acres; (6) that appellee relied upon said statement made to him by Gibson and believed the same to be true; (7) that said statement so made by Gibson as to the amount of land contained in the tract was false and untrue; (8) that Gibson did not know that the same was false and untrue; (9) that the statement made by Ray to Gibson to the effect that the land contained 300 acres was false and untrue; (10) that Ray did not know that said statement so made by him to Gibson was false and untrue; (11) that Gibson believed such statement to be true and relied thereon; (12) that appellee used due diligence to ascertain the number of acres in the land when he made the purchase; (13) that Gibson was not acting for appellants in making the deal with appellee by which he was to buy the land; (14) that Gibson was not acting for himself, Sharp, and Baldridge when he made said deal; (15) that appellee and appellants were mutually mistaken as to the number of acres contained in the tract of land; (16) that appellee had suffered damage in the sum of $1,138.09; (17) that appellee first ascertained that there was a shortage in said tract of land on February 15, 1925; (18) that appellee by the use of reasonable diligence could have ascertained such shortage in the latter part of December, 1924; (19) that the dates when appellee could by the exercise of reasonable diligence have discovered such shortage, and when he did actually discover the same, were both within two years previous to the filing of this suit. The court rendered judgment on said findings for appellee, and appellants present the same for review.

Opinion,

Appellants by their seventh proposition contend that appellee's pleadings do not raise an issue of mutual mistake, and that the finding of the jury that both appellants and appellee were mutually mistaken as to the acreage contained in said tract cannot therefore be made the basis of any relief to appellee. They further contend that such finding precludes any relief to appellee on the ground of false representation as to such acreage, and that the court therefore erred in rendering judgment for appellee. It is a well-established rule in this state that in determining whether a judgment is supported by the pleadings, the court will consider the pleadings of both parties, and that the omissions in the pleadings of one party may be supplied by allegations in the pleadings of the other. Hotel Dieu v. Armendariz (Tex. Civ. App.) 167 S. W. 181, 182, and authorities there cited (affirmed, 210 S. W. 518); Law Reporting Co. v. Texas Grain & Elevator Co. (Tex. Civ. App.) 168 S. W. 1001, 1003 and authorities there cited; Clem Lumber Co. v. Elliott Lumber Co. (Tex. Com. App.) 254 S. W. 935, 937, and authorities there cited.

Appellee alleged, in substance, that Ray authorized Gibson to represent that said tract contained 300 acres, and that he knew at the time that it did not contain such acreage. He further alleged that Gibson did represent to him that said tract contained said acreage, and that he relied on such representation and did not know that the same was untrue until he had a survey made in the early part of 1925. He also in his pleadings referred to such representation as to acreage as such fraud or mistake. Appellants alleged the transaction in detail and pleaded especially that they did not know the actual acreage contained in said tract. While neither of the parties used the expression "mutual mistake" in their pleadings, said pleadings alleged that neither appellants nor appellee knew the actual acreage in said tract. The jury found, in substance, that appellant Ray did tell Gibson that said tract contained 300 acres and that Gibson told appellee that it contained such acreage and that appellee relied on such statement. The jury further found, in substance, that neither Ray nor Gibson knew that said statement was untrue. The jury further found that appellants and appellee were mutually mistaken with regard to the acreage actually contained in said tract. There was no objection to the submission of any of such issues and there is no assignment that any of them are without support in the evidence. There was no objection to the evidence on which such findings...