Stowe v. Wooten, 829.

• Decision Date: 03 April 1931
• Docket Number: No. 829.,829.
• Citation: 37 S.W.2d 1055
• Parties: STOWE et al. v. WOOTEN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

37 S.W.2d 1055

STOWE et al. v. WOOTEN.^*

No. 829.

Court of Civil Appeals of Texas. Eastland.

April 3, 1931.

Rehearing Denied April 24, 1931.

Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Action by J. E. Stowe and others against H. O. Wooten. From an adverse judgment, plaintiffs appeal.

Affirmed.

Kirby, King & Overshiner and York & Camp, all of Abilene, for appellants.

Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellee.

FUNDERBURK, J.

The title to a tract of land adjacent to the city of Abilene was in H. O. Wooten. The land was owned by said Wooten and Mayfield & McGee. Wooten made a contract with R. A. Coquille to sell the land. A plat of the land, showing a division thereof into lots and blocks, with streets and alleys, was filed and designated as the "Country Club addition." The contract constituted Coquille exclusive agent for the nominal owner, Wooten, to make sale of the lots in accordance with an agreed plan. The plan comprehended that the seventy-four lots were to be divided into thirty-seven units of interest. The several units were to be sold for $1,500 each, the sale thereof to be evidenced by certificates in which the purchaser of a unit was designated as "the contract holder." The certificate thus evidencing the ownership of units, in legal effect, constituted the contract holders as underwriters for the sale of all the lots or tracts at $750 per tract. Upon the sale of all the units the sale of the seventy-four lots was thereby underwritten by the purchasers of units for the aggregate sum of $55,500. The plan provided, and it was so specified in the certificates, that after the sale of all the units, all the lots were to be offered for sale at public auction. It was provided that, when a sufficient number of lots were sold to make the sum of $55,500, the remaining lots were to be sold for the benefit of all contract holders; the sum realized to be divided equally between them, besides the immediate return to each contract holder of the initial payment upon the contracts of $200. It was provided that the sale of a tract for an amount in excess of $750 should automatically reduce the price that each remaining tract was required to be sold for. The contract holders were under obligation, in the event sufficient lots were not sold to make the said sum of $55,500, to select lots and pay therefor the sum of $750, for which the nominal owner was to make deeds. Under said plan all units were sold; J. E. Stowe and J. L. Hockersmith having purchased one unit, and Nathan Landau one unit. At the auction sale it became necessary for the parties last named, and perhaps other contract holders, in order to comply with the obligations of their contracts, to take lots, and accordingly Wooten executed a deed to Stowe, Hockersmith, and Landau of tract 2 in block 12, also to Stowe and Hockersmith of tract 5 in block 2, and to Nathan Landau of lot 4 in block 6. The several deeds, in conformity to the provisions of the certificates, recited payment of a part of the purchase price, with obligations secured by vendor's lien, for the remainder. The said Stowe, Hockersmith, and Landau brought this suit against H. O. Wooten to cancel said deeds and rescind the conveyances on the ground of alleged fraud.

Plaintiffs' petition alleged as fraud a number of false representations and false promises, of which there need be mentioned only such as were submitted to the jury, since all others must be regarded as having been waived. Of the grounds of fraud not waived, the only one consisting of an alleged misrepresentation of an existing or pre-existing fact was that the defendant, through one or more of his agents, had represented that highway No. 30 had been definitely established along what defendant's agents represented to be an extension of Butternut street through the Country Club addition. Other acts of alleged fraud, as to which issues were submitted to the jury, and which were therefore not waived, were to the effect that said agents had represented that electricity for lights was to be placed on the Country Club addition at once, and that natural gas was to be placed upon or made available for said addition.

Upon the issues submitted, the jury found that Mayfield & McGee, the other joint owners with Wooten of the Country Club addition, and also R. A. Lewis, an employee of R. A. Coquille, were not agents of said H. O. Wooten. They further found that none of said agents, before plaintiffs signed the unit contracts, represented to plaintiffs that highway No. 30 had been definitely located through the Country Club addition by the extension of Butternut street; that some one or more of the said agents did state to plaintiffs that electricity for lights was to be placed on the Country Club addition at once, but that such promise was not a material inducement to plaintiffs in their purchasing of unit contracts, and further that H. O. Wooten, at the time the promises were made, did intend to comply with said promise and had in fact substantially complied therewith. The jury further found that neither of the said agents promised plaintiffs that natural gas was to be placed upon or made available for said addition. Upon these findings judgment was rendered for the defendant, from which the plaintiffs have appealed.

Appellants submit only two propositions as grounds upon which it is insisted that the judgment of the trial court should be reversed. It is first contended that the court erred in submitting to the jury the question of whether Mayfield, McGee, and Lewis, or either or any of them, were agents of H. O. Wooten, and that the evidence disclosed, as a matter of law, that they and each of them were such agents. As already noted, the jury found that they were not such agents. We have concluded that appellants' contention, as expressed in this proposition, must be sustained. Wooten's contract with Coquille was in writing. It expressly denominated Coquille as the exclusive agent of Wooten for the sale of the seventy-four lots, constituting the Country Club addition. The contract, among other things, provided that Coquille was to pay all of the expenses incurred in conducting the sale of said lots, such as, among other things, "salesmen's commissions." Clearly the contract contemplated the employment of salesmen in addition to Coquille. The only object of Coquille's agency being to sell the lots, such other salesmen were, of course, to sell or assist in the sale of said lots. The provision quoted we think implies the authority on the part of Coquille to appoint salesmen who would be agents of Wooten. In 2 C. J. 688, with reference to the authority of an agent to appoint subagents, it is said: "Express authority to appoint such agents is...