W.P. Walker & Co. v. Walbridge

• Decision Date: 14 March 1905
• Docket Number: 1,340.
• Parties: W. P. WALKER & CO. v. WALBRIDGE.
• Court: U.S. Court of Appeals — Fifth Circuit

136 F. 19

W. P. WALKER & CO. v. WALBRIDGE.

No. 1,340.

United States Court of Appeals, Fifth Circuit.

March 14, 1905

W. M Walton, Geo. S. Walton, A. B. Storey, and P. J. Greenwood for plaintiffs in error.

T. W Gregory and R. L. Batts, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

The declaration in this case avers, substantially: That the plaintiffs and the defendant about July 1, 1901, entered into negotiations for the purchase by the plaintiffs of a ranch owned by the defendant, known as the 'Old Murphy Ranch,' situated in Jeff Davis, Presidio, and Brewster counties, Tex. That the defendant at that time represented to the plaintiffs that the ranch contained between 41 and 43 sections of land, held by the defendant under various titles; some of them being by fee-simple title, other parts by tax title, and still other parts as leased lands. That the plaintiff G. C. Walker and the defendant at the time of entering on this negotiation made a partial personal examination of the ranch, during which examination Walker stated to the defendant that it would be fruitless for him (Walker) to attempt to ascertain the location and size of the ranch from a personal examination, as he was a stranger in the country, and might be shown over only a small portion of the land, and not know but that he had seen all of it; and, upon inquiry of the plaintiffs, the defendant again assured the plaintiffs that the ranch contained between 41 and 43 sections of land, of the kinds above described. An understanding was finally reached, by the terms of which the plaintiffs agreed to purchase a ranch of the size and character mentioned by the defendant for the lump sum of $20,000 for the land, and so much per head for certain cattle thereon. No difference in price was fixed, agreed on, or understood in regard to the several different kinds of land constituting the ranch; but the ranch, as a whole, consisting of from 41 to 43 sections of the various kinds of land above described, was valued at, and sold by the defendant to the plaintiffs for the agreed price of, twenty thousand dollars, which sum was paid to the defendant. On July 6, 1901, a written agreement between plaintiff G. C. Walker and the defendant in regard to the sale of the ranch was signed. This written agreement included the terms and price of the land, but did not specify the quantity of land which the ranch contained, because of the request of the defendant that this item should be omitted, and the obligation upon his part to furnish the necessary abstracts of title; and although the plaintiff at the time requested that the written contract should show the number of acres of land contained in the ranch, and to be transferred by the contract of sale, upon the repeated assurances of the defendant that the ranch contained between 41 and 43 sections of land, and that defendant would furnish to plaintiffs the leases, title papers, and abstracts showing the amount of land in the ranch, the specification as to the number of acres in same was omitted from the written contract; and, relying upon the assurances of the defendant, plaintiffs waived the insertion in the contract of the quantity of land contained in the ranch, the title to which was to pass to plaintiffs by the sale. That at no time prior to the consummation of the sale did plaintiffs know the quantity of land in the ranch, except as the same was represented by the defendant, but that they relied implicitly on the representations and statements of the defendant. That, as an inducement to the plaintiffs to purchase the ranch, defendant represented to them that the ranch contained, among other lands, as many as 11 or 13 sections held by the defendant under a 10-year lease from the state, which had yet more than 9 years to run; that the 10-year leases were very valuable, as the state had lowered the lease period, and no more 10-year leases could be secured; that the 10-year lease land was situated in Presidio county, and was included in the ranch; that the defendant would furnish abstracts showing therein everything concerning the lands constituting the ranch, including that land held under the leases; that these representations made by the defendant in regard to the quantity of 10-year lease lands included in the ranch were confirmed in defendant's presence by the defendant's agent, Stewart, by showing plaintiffs a list including 13 sections of land in Presidio county held, according to that list, under a 10-year lease from November 2, 1900. That these representations were made by the defendant to the plaintiffs prior to the execution of the contract of sale. The plaintiffs believed the same to be true, and, relying implicitly upon the truth of the same, were induced to buy the ranch because of these representations. That the defendant did furnish and deliver to the plaintiffs abstracts of title to all the lands represented by the defendant to be in the ranch. That, according to the abstract so furnished plaintiffs by the defendant, the ranch contained 43.3 sections of land, among which were included 13 sections of land lying in Presidio county, purporting to be held by the defendant from the state under 10-year lease contracts, dating from November 2, 1900. That, in addition to the abstracts, defendant also furnished plaintiffs a certificate from D. Alarcon, county clerk of Presidio county, showing the leases to have been made as claimed by the defendant, and as shown by the abstracts, only in that 2 of the sections were by the certificate shown to be in one block, and the remaining 11 in another block, whereas in the abstracts all 13 were shown to be in one block. That, believing the representations made by the defendant to the plaintiffs as to the number of sections of land in the ranch to be true, and believing the abstracts furnished by the defendant to the plaintiffs to be true and correct, and relying upon the truth and correctness of the representations, abstracts, and statements, the plaintiffs did on October 5, 1901, enter into a contract of purchase of the ranch, and paid to the defendant the agreed price, and received the title papers, abstracts, etc., and that thereupon the defendant reiterated his assurance to the plaintiffs that the ranch was as defendant had represented it to be, and plaintiffs went into immediate possession of the ranch. That on January 1, 1902, for the purpose of paying the amount due the state on the leased lands represented by the defendant to be included in the ranch, and so shown to be by the abstracts, etc., furnished the plaintiffs by the defendant, and which the plaintiffs relied upon as true, and verily believed to be true, the plaintiffs forwarded to the State Treasurer the amount so due the state, including the amount due on the 13 sections lying in Presidio county, held under the 10-year lease contracts. That thereupon plaintiffs discovered for the first time that the ranch, instead of containing the 13 sections of 10-year lease land, as represented by the defendant, contained only 2 sections of 10-year lease land. That plaintiffs immediately made full investigation, and discovered for the first time that the ranch contained less land than had been represented by the defendant and shown by the abstract furnished by the defendant, and that the shortage thus appearing for the first time was made up wholly of the 10-year lease lands represented by the defendant to be included in the ranch. That plaintiffs implicitly relied upon the statements and representations made by the defendant, and upon the abstracts of title and the clerk's certificate, as to the number of sections of land included in the ranch, and verily believed and thought that they were buying a ranch containing 43 sections of land. That they in fact bought and paid for 43 sections. That defendant conveyed to them only 32 sections, leaving a shortage of 11 sections, which shortage they did not discover until January 1, 1902. That the statements and representations and the abstract furnished by the defendant to the plaintiffs were wholly false and untrue. That the plaintiffs would never have purchased the ranch, had they known that the ranch contained only 32 sections, instead of 43 sections. That the plaintiffs were guilty of no negligence in accepting the statements and representations and abstracts as true. That the 11 sections of lease land represented by the defendant to be embraced in the ranch had at the time plaintiffs purchased a market value of 75 cents per acre, and that plaintiffs were damaged to the extent of their value by the false representations of the defendant. That in the purchase of the ranch the 11 sections of 10-year lease land represented by the defendant to be included in the ranch, and which the plaintiffs, relying on the representations of the defendant, believed were included in the ranch, were estimated by the plaintiffs and the defendant, because of the long time which the leases had yet to run, and because of the privilege of re-leasing the same from term to term, as of the same values as the fee-simple title lands, or at a value of 75 cents per acre, aggregating $5,280, for which sum the plaintiffs sue, which has never been paid, nor any part thereof, and is now justly due to the plaintiffs.

To these pleadings of the plaintiffs, on which the case went to trial, the defendant demurred generally that 'the same is insufficient in law,' and submitted special exceptions or demurrers to the effect that the petition sets forth oral negotiations which resulted in a contract reduced to writing which superseded and replaced the oral negotiations; that the petition undertakes to set aside a part of the contract, without attempting to set aside the...