Schallert v. Boggs

• Decision Date: 08 May 1918
• Docket Number: (No. 5928.)
• Citation: 204 S.W. 1061
• Parties: SCHALLERT v. BOGGS et al.
• Court: Texas Court of Appeals

204 S.W. 1061

SCHALLERT v. BOGGS et al.

(No. 5928.)

Court of Civil Appeals of Texas. Austin.

May 8, 1918.

Appeal from District Court, McLennan County; Geo. N. Denton, Judge.

Action by Robert Schallert against T. K. Boggs and others. From a judgment in favor of certain defendants, plaintiff appeals. Reversed and remanded.

J. D. Williamson and Cross & Rogers, all of Waco, and A. V. McDonnell, of Austin, for appellant. Alva Bryan and W. L. Eason, both of Waco, for appellees Hulsey, Kean, and Tobias.

Findings of Fact.

JENKINS, J.

Gordon Boggs, Hugh Boggs, and Clayton Boggs, who are hereinafter referred to as Boggs Bros., and R. H. Kimsey, entered into a conspiracy to defraud the appellant, by which they succeeded in obtaining from him money, land, horses, and his promissory notes of great value. T. K. Boggs, with knowledge of the fraud, obtained a portion of the fruits of their fraudulent scheme. As the jury found the existence of such conspiracy, and the undisputed evidence sustains such finding, and as these conspirators have not appealed from the judgment against them, it would serve no useful purpose to set out the facts evidencing such conspiracy.

As a result of their fraudulent schemes, Boggs Bros. and Kimsey obtained the promissory notes of appellant, made payable to his own order, and indorsed by him in blank as follows: On August 19, 1913, note for $2,200; on August 21, 1913, five notes for $2,000 each and one for $1,225; on September 21, 1913 eight notes, for $2,500 each. Appellant paid two of the notes, for $2,000 each. Appellant alleged that appellees Hulsey, Tobias, and Kean were parties to said conspiracy, and were the holders of part, if not all, of said unpaid notes, claiming to be innocent purchasers thereof. He prayed for the cancellation of said notes, for the cancellation of the deed to two tracts of land which he deeded to T. K. Boggs, and for the value of the horses and mules, and the money which he had paid.

Appellees answered by general denial, and by cross-action, in which they alleged that they were the owners and holders of four of said notes for $2,000 each, one for $1,225, one for $2,200, one for $2,500 and seven for $2,500 each, all of which they alleged they had purchased in due course of trade, before maturity, for a valuable consideration, without notice of any discount or defense thereto.

Upon special issues found by the jury, the court rendered judgment against T. K. Boggs, Boggs Bros., and R. H. Kimsey for the sum of $44,169.65, as principal and interest, for the amount of cash paid, notes executed, and the value of the horses and mules and for the cancellation of the deed to the two tracts of land, and in favor of appellee Hulsey for $3,489.40, principal and interest of one note held by him, and in favor of Hulsey, Kean, and Tobias, jointly, for $24,425.80, principal and interest of notes held by them.

Opinion.

The findings of the jury as to the amount of the notes separately are contradictory of their findings as to their aggregate value, and their finding as to the value of the horses and mules is not supported by the evidence, for which reason we sustain appellant's first assignment of error.

We think that the objections to the special issues, in so far as they submitted both false representations and fraud, were well taken. A misrepresentation of a material fact, whereby a party is induced to enter into a contract, is sufficient to avoid the same, though made without any specific intent to defraud. Henderson v. Railway Co., 17 Tex....