Stanford v. Finks

• Court: Texas Court of Appeals
• Writing for the Court: Eidson
• Citation: Stanford v. Finks, 99 S.W. 449, 45 Tex. Civ. App. 30 (Tex. App. 1907)
• Decision Date: 16 January 1907
• Parties: STANFORD v. FINKS et al.

99 S.W. 449

STANFORD v. FINKS et al.

Court of Civil Appeals of Texas.

January 16, 1907.

Appeal from McLennan County Court; J. W. Baker, Judge.

Action by Albert Stanford against J. H. Finks and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Appellant brought this suit in the court below for the purpose of recovering certain sums of money alleged to have been paid by him to appellees through the fraud and misrepresentations of appellees and the mutual mistake of appellant and appellees. Appellees interposed a special demurrer to appellant's petition, setting up the statute of limitation of two years as a bar to appellant's cause of action, which was sustained by the court and judgment rendered dismissing appellant's suit and for costs against him, from which ruling and judgment of the court below appellant has perfected an appeal to this court.

As the only question presented for consideration by this court arises upon the petition of appellant, we insert a copy thereof, which, omitting formal parts, is as follows:

"(1) Your petitioner shows to the court that on the 17th day of December, 1890, there was pending in the Nineteenth judicial district court of McLennan county, Texas, a cause entitled `J. H. Finks et al. vs. T. B. Cox et al.'; that the plaintiffs in said suit were J. H. Finks, Alfred Abeel, and T. P. Abeel, then doing business as partners under the firm name and style of `J. H. Finks & Co.'; that your petitioner and his vendors, with eight or ten others, were defendants in said suit, and that said suit was for the title and possession of several different pieces and parcels of land, situated in McLennan county, Texas, claimed by the different defendants to said cause and by the plaintiffs in said cause; that on the 17th day of December, 1890, your petitioner entered into a written contract with defendants herein. whereby petitioner bound himself not to make any defense to said suit above described, and not to assist the other defendants to said suit in any manner, and in consideration of said agreement defendants herein obligated themselves to file for your petitioner in said cause a general demurrer and general denial and plea of not guilty, and further obligated themselves not to take judgment by default against your petitioner and to prosecute their suit to effect, and if they obtained final judgment against your petitioner herein for a part of the land claimed by him, involved in said suit above described, then, upon the recovery of said land in said obligation, the defendants herein obligated themselves to sell the land in possession of plaintiffs herein for the sum of seven dollars per acre, and your petitioner obligated himself to buy said land at said price, and pay therefor one-third cash, one-third in one year, and one-third in two years from date of final judgment in said cause, said deferred payments to be covered by notes with ten per cent. per annum interest from date, said notes to be signed by petitioner.

"(2) Your petitioner further represents that on or about the 23d day of February, 1898, and various dates prior thereto, the defendants herein falsely and fraudulently, and with intent to defraud plaintiff and to obtain money from him without consideration, represented to plaintiff that they had complied with their part of said contract hereinbefore referred to in every particular, and that they recovered final judgment against petitioner for the title and possession of the land sued for as claimed by him, and called upon your petitioner to comply with his part of said contract by paying the seven dollars per acre, according to the terms of said contract, and executing the notes as provided for therein; and your petitioner believing said statement of the defendants herein to be true, and relying upon the truthfullness of same, and having no idea that they would in any manner deceive and defraud him, but having perfect confidence in their honesty and integrity, and having a right to rely upon their statements, as they were in a position to know the truth of the same, and, as your petitioner had no reason to doubt said statements, your petitioner did rely and act upon said statements as if true, and believing that the defendants herein had in every way complied with their said written contract with petitioner, your petitioner did execute and deliver to defendants herein his three certain promissory notes for the sum of $74.36 each, the first payable October 1, 1899, the second October 1, 1900, and the third October 1, 1901, each bearing interest at ten per cent. per annum from date, and payable to J. H. Finks & Co., all dated February 23, 1898.

"Your petitioner shows to the court that he had a right to rely upon the truthfulness of the statements made by J. H. Finks & Co., the defendants herein, as to their having complied with the terms of said written contract, and as to petitioner being justly indebted to them under the terms of said contract; that J. H. Finks at that time held a very important federal office under the United States government at Waco and was a well-known and reputable citizen, and petitioner had never heard his honesty and fair dealing in any manner questioned; that defendants T. P. Abeel and Alfred Abeel were well-known and wealthy business men of this county, and petitioner had never known their honesty, integrity, or truthfulness to be questioned, but considered each reputable and highly honorable citizens of this county and worthy of all confidence and trust, and that he did place all confidence and trust in each of said defendants, and relied implicitly upon the statements made to him by them as to their compliance with the terms of the contract above referred to. That said defendants were in every manner in a position to know whether or not they had complied with the terms of said contract, and that petitioner was in no manner conversant with the facts in reference to the condition and the action that had been taken upon said contract; that he had entered into the same with the defendants for the express avowed and declared purpose of avoiding the trouble and expense and worry of keeping up with said litigation, and that it was for this purpose and for the further purpose of avoiding the trouble and expense of employing counsel to investigate and keep up with said litigation above referred to that he entered into said contract with these defendants; that said litigation was of a very complicated and intricate nature, involving the titles to some ten or fifteen different tracts of land in this county; that said suit was appealed to the higher courts of this state and reversed and remanded, appealed again and again, and was in a very complicated condition, and that no citizen, unless he be a lawyer, could have found out the true facts or condition of said litigation without the employment of an attorney at a great expense to investigate the same for him; that your petitioner is a farmer, and has never had any dealings in the courts of the country, and is absolutely ignorant of their manner of procedure, and of the manner of conducting suits or causes of action in litigation, and that he could not, by the exercise of any degree of diligence on his part, have discovered the true facts as to whether defendants had complied with their said contract with him or not; that said defendants,...