St. John v. Fitzgerald
| Decision Date | 24 June 1955 |
| Docket Number | No. 3171,3171 |
| Citation | 281 S.W.2d 201 |
| Parties | D. D. ST. JOHN, Appellant, v. Norman D. FITZGERALD, Appellee. |
| Court | Texas Court of Appeals |
Bradbury, Tippen & Brown, Abilene, for appellant.
McMahon, Springer, Smart & Walter, Abilene, for appellee.
In February, 1952, D. D. St. John and Norman D. FitzGerald formed a partnership known as Saxon Drilling Company. On December 5, 1952, they executed a contract for dissolution of said partnership effective January 10, 1953, in which it was agreed that FitzGerald and certain FitzGerald trust estates should take as their share of the assets of the partnership the note of Norman D. FitzGerald for $200,000 payable to Saxon Drilling Company on or before January 10, 1953, and that St. John should take the physical property of said company and accounts receivable and pay the debts of said partnership. After dissolution of the partnership St. John filed this suit against FitzGerald for damages, alleging that FitzGerald at the time of the execution of the dissolution agreement on February 5, 1952, had falsely represented that the unpaid bills of the partnership amounted to only $6,000 when the partnership owed about $16,000. FitzGerald took the deposition of St. John and then filed a motion for summary judgment based on the ground that St. John had testified in his deposition that he did not rely on FitzGerald's representations that unpaid bills amounted to only $6,000.00; FitzGerald exhibited said deposition and alleged St. John had unequivocally and specifically testified therein that he did not rely on said representations when the dissolution agreement was executed and, therefore, St. John was not induced thereby to enter into said contract and suffered no damage thereby and FitzGerald was entitled to a summary judgment. Plaintiff answered that a summary judgment should not be rendered because an issue of fact was presented. He filed therewith a counter affidavit to the effect that a material point in the case was whether he relied on FitzGerald's representation that the unpaid bills amounted to only $6,000.00 and that he did rely thereon when he signed the dissolution agreement. St. John stated in his counter affidavit that when FitzGerald first told him that $6,000.00 constituted all the debts of the partnership he did not rely thereon. The affidavit then continued as follows:
All of Mr. St. John's deposition directly pertinent to the question of whether he relied on said alleged representation of Mr. FitzGerald is as follows:
'74. Now, what was said to you by Mr. FitzGerald about the indebtedness of the partnership at that time * * * that would be * * * (interrupting). A. He told me * * *
'75. * * * the 5 day of December. A. He told me several days before that-he and Leland Kelley both-that we had enough money in the bank to pay all the debts and have $1,500.00 left over.
'76. Where did he tell you that? A. His office. His building.
'77. His building? A. Yes, sir.
'78. What was the occasion of him telling you that? A. We were discussing.
'79. Discussing what? A. How much the company owed.
'80. Is that the time dissolution was talked-contemplated? A. I think it was probably.
'81. You just think it was? A. It's been quite a while ago. I don't know.
'82. You don't know specifically? A. I was fixing to get away from him. I had all I wanted.
'83. Don't volunteer anything. Just answer the questions. A. That's what I'm trying to tell you-I can't tell whether it was or not.
'84. You can't say positively you discussed dissolution at that time? At the time they made that statement to you. A. I couldn't say. I don't know.
'85. At the time, two or three days later, you were in the office with your lawyer and this contract was prepared-what statement or representation was made in regard to the indebtedness of the partnership? A. The best I recall, he brought an envelope up here, and said there was approximately $6,000.00 worth of bills. We had a contract coming in for $5,900.00-(interrupting)
'86. The Gilchrist contract? A. Yes. I figured that would offset it. Mr. Harrell asked him the direct question: he said, 'Is this all the bills?' and he said, 'Yes.'
'87. He said that was all the bills, or all he knew of? A. He said 'All the bills.'
'104. At that time, you say Mr. Harrell asked Mr. FitzGerald what question? A. He asked if this was all the bills.
'105. What did Mr. FitzGerald say? A. He said 'Yes.'
'118. In other words, you did have the check book before you? A. Yes, sir.
'119. You did some checking? A. I didn't know which bills were unpaid or had been paid.
'120. You did some checking? A. Yes, sir.
'121. Then you didn't rely on what Mr. FitzGerald told you? You checked yourself? A. I wouldn't rely on it.
'122. You didn't rely on what he said? You didn't believe it-you wanted to see for yourself in the check book? A. Mr. Harreel checked.
'123. I say, that was the reason; you didn't rely on Mr. FitzGerald? A. One of the reasons.
'124. You didn't rely on what Mr. FitzGerald or Mr. Kelley told you? A. I don't know what Mr. Harrell relied on. I didn't.
'125. What he said or told you about the bills was not what induced you to sign the contract? A. I didn't.
'126. You signed the contract; that didn't induce you to sign it? A. I never thought he was totally honest.
'127. You said you didn't believe a word he said, and you didn't believe his representative, and therefore that was not what induced you to sign the contract? A. I wouldn't say that.
'128. What did induce you? A. I was trying to get away from him-break up the partnership.
'129. What he told you that that was all of the bills, you didn't believe him-you sent for the check book? A. Mr. Harrell did.
'130. I know-what he did, you did-he was your lawyer. You wanted to see for yourself. You checked the check book and made an audit? A. Not thoroughly.
'131. In this contract you agreed to assume all outstanding obligations of Saxon Drilling Company. didn't you? A. That was the agreement, but it was with the understanding that $6,000.00 was the amount of it.
'132. I didn't ask you that. In paragraph 2, Section 2 of the paragraph says-you agreed and signed this contract, Exhibit 2-that you 'shall assume all of the obligations of the said Saxon Drilling Company, and shall save and hold harmless the other partners from any loss, cost, expense or liability therefor.' A. With the understanding that $6,000.00 was all of it.
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