Sudderth v. Grosshans

• Decision Date: 18 April 1979
• Docket Number: No. 12917,12917
• Citation: 581 S.W.2d 215
• Parties: W. L. SUDDERTH and W. L. Sudderth, Inc., Appellants, v. Kenneth W. GROSSHANS, Appellee.
• Court: Texas Court of Appeals

Page 215

581 S.W.2d 215

W. L. SUDDERTH and W. L. Sudderth, Inc., Appellants, v. Kenneth W. GROSSHANS, Appellee.

No. 12917.

Court of Civil Appeals of Texas, Austin.

April 18, 1979.

Ronald S. Block, Holcomb & Norwood, Tyler, for appellants.

Tom Lear, Logan, Lear, Gossett & Harrison, San Angelo, for appellee.

SHANNON, Justice.

This is an appeal from an order overruling appellants' pleas of privilege and pertains to Tex.Rev.Civ.Stat.Ann. art. 1995, subdivision 7 (1964).

Appellee Kenneth W. Grosshans sued appellants W. L. Sudderth and W. L. Sudderth, Inc., a Texas corporation, in the district court of Tom Green County for damages as a result of fraud in the sale of a water well drilling rig by appellants to appellee.

Appellee pleaded that appellants represented to him in Tom Green County that the rig had been "just overhauled" and was in "very good condition." Appellee alleged further that the representations were false in that the equipment was not in good condition. Appellee pleaded that he relied upon the representations to his damage.

Appellants filed pleas of privilege praying that the cause be transferred to Smith County, the county of their residence. Appellee filed a controverting affidavit relying primarily upon subdivision 7.

Texas Rev.Civ.Stat.Ann. art. 1995, subdivision 7, provides in part:

"In all cases of fraud . . . suit may be brought in the county where the fraud was committed . . ."

To establish fraud it must appear: (1) that a material representation was made; (2) that the representation was false; (3) that, when the representation was made, the speaker knew it was false or that he made it recklessly without any knowledge of its truth and as a positive assertion; (4) that the speaker made the representation with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon the representation; and (6) that the party thereby suffered injury. Panhandle & Santa Fe Ry. Co. v. O'Neal, 119 S.W.2d 1077 (Tex.Civ.App.1938, writ ref'd).

Appellants claim in point of error two that there is no evidence that they committed fraud in Tom Green County. In considering a "no evidence" point, the reviewing court must reject all evidence contrary to the jury's findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950).

The "Bill of Sale and Contract of Delivery" of the drilling rig was signed by the parties in Tom Green County. An attachment to the bill of sale and contract described the rig as having been "just overhauled" and in "very good condition." Appellant W. L. Sudderth testified that he told appellee that the rig was in "good condition." Sudderth told appellee that the motor of the rig had not been used before appellee bought the rig. The rig broke down about two weeks after the sale. Appellee discovered at that time that ". . . the blower was completely shot; rings were all gone. The crank shaft, when they dropped the bottom pan, it was completely grooved from wear and abusiveness (sic) of it. I believe there was, also, one head that was gone." Appellee relied upon the...