Reed v. Hester, 8428.

• Citation: 28 S.W.2d 219
• Decision Date: 23 April 1930
• Docket Number: No. 8428.,8428.
• Parties: REED et ux. v. HESTER et al.
• Court: Texas Court of Appeals

28 S.W.2d 219

REED et ux. v. HESTER et al.

No. 8428.

Court of Civil Appeals of Texas. San Antonio.

April 23, 1930.

Rehearing Denied May 28, 1930.

Appeal from District Court, Hidalgo County; J. E. Leslie, Judge.

Action by O. D. Reed and wife against T. I. Hester, T. G. Oliver, and R. W. Plant, but suit dismissed as to R. W. Plant, his death having been suggested. From a judgment on an instructed verdict for T. I. Hester and T. G. Oliver, plaintiffs appeal.

Affirmed.

Neal A. Brown, of Edinburg, for appellants.

R. E. McKie and T. G. Oliver, Jr., both of San Marcos, and Robert E. Kirkpatrick, of Mercedes, for appellees.

FLY, C. J.

This is a naction by O. D. Reed and wife, Flora Reed, against T. I. Hester, T. G. Oliver, and R. W. Plant, for the sum of $9,700, and for a writ of injunction to restrain Hester from selling, transferring, or hypothecating five promissory notes for $700, executed by O. D. Reed to said Hester in the trade or exchange of land owned by appellants in Caldwell county, and land owned by Hester in Hidalgo county. Appellants alleged fraud and misrepresentation by Hester and his two agents, Plant and Oliver, as to the land in Hidalgo county, which appellants had obtained for their land in Martindale, Caldwell county, and the five notes. Hester denied that Plant and Oliver were his agents in the sale and disposition of the land described in the petition, and denied that either of them had any authority to represent him in the sale or exchange of the property. Hester in the alternative asked for judgment over against Oliver and Plant for any judgment that might be recovered by appellants against him. The death of R. W. Plant was suggested and he was dismissed from the suit, and a jury having been chosen, the court instructed a verdict for T. I. Hester and T. G. Oliver and against O. D. Reed and Flora Reed.

In view of the instructed verdict, we will consider the case in the light of the evidence offered by appellants. Appellant O. D. Reed stated that he had been raised on a farm, had engaged to a limited extent in merchandizing and had dealt "a little bit" in real estate. He was acquainted with Oliver, who lived in San Marcos and was a real estate agent. He testified that Plant came to his home in Martindale and told him about the property in Hidalgo county. He told about meeting Oliver and Plant in San Marcos and going in an automobile to the "Valley." They rode in Plant's car. After spending the night there, they rode over the valley looking at different orchards and places. In the afternoon the three went to the land of Hester, and Reed and Oliver went over at least a portion of it, going one-half way across it. The land was almost a square, the house being on the west side next to the town of Donna. The five-acre orchard was on the north side in the northwest corner. Reed had full...