White v. Carlton

• Decision Date: 05 November 1925
• Docket Number: (No. 275.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 277 S.W. 701
• Parties: WHITE et al. v. CARLTON et ux.
• Court: Texas Court of Appeals

277 S.W. 701

WHITE et al. v. CARLTON et ux.

(No. 275.)^*

Court of Civil Appeals of Texas. Waco.

November 5, 1925.

Rehearing Denied December 3, 1925.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Action by G. W. Carlton and wife against G. L. White and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Wear, Wood & Wear, of Hillsboro, for appellants.

Morrow & Stollenwerck, of Hillsboro, for appellees.

BARCUS, J.

This suit was instituted by appellees against appellant for damages which they claimed they had sustained in a trade, whereby appellees conveyed to appellants 218 acres of land in Hill county, at an agreed price of $155 an acre, against which there were liens aggregating $14,100, in exchange for 138 acres of land in Navarro county, which was conveyed to appellees by appellant at an agreed price of $105 an acre, and 246½ acres in Hale county at an agreed price of $35 per acre, and the payment by appellees to appellants of $3,340. A contract of exchange was signed by all parties on the 12th day of November, 1921, and contains, among others, the following provision:

"It is further agreed that the parties of the first part [appellants] guarantee to the party of the second part [appellee] that the 246½ acres of land in Hale county is a good, smooth tract of land, as good as other lands in said neighborhood."

There was no controversy about the land in Hill and Navarro counties being of the kind, character, and value as stated in the contract, and that appellees paid the $3,340 in cash. Appellees contend that, in addition to the written guaranty contained in the contract above quoted, appellants verbally represented that the Hale county land was within 4 or 5 miles of Abernathy, and was worth $35 an acre, and was good, smooth, plains land, and as good as other lands in said neighborhood. Appellees alleged that the representations made by appellants with reference to said land were false in that: (1) the land was represented to be 4 or 5 miles from Abernathy, and as a matter of fact it was 19 or 20 miles; (2) that it was worth $35 an acre, when as a matter of fact it was only worth $13; (3) that it was represented to be a smooth tract of land, when as a matter of fact it was rough and hilly and only 100 acres of the same was smooth, tillable land, and the remainder was so rough that it could not be cultivated; (4) that they represented the land was as good as other lands in the neighborhood, when as a matter of fact it was not as good, and, if it had been, it would have been worth $35, and instead it was only worth $13 an acre.

Appellees alleged that by reason of the breach of the written guaranty they had been damaged in the sum of $5,423, the difference between the value of the 246½ acres of land had same been as guaranteed and the actual value thereof at the time, or, in the alternative, that they were entitled to the difference in the value of the property which they received and that which they contracted to purchase, which they claimed in either event to be $5,423. The suit was filed February 27, 1924. Appellees, as a reason for not having filed the suit sooner, alleged they had not discovered the real condition and value of the land in Hale county prior to November, 1923, for the reason that they had no occasion to examine same; that they were living in Hill county and the land was some 400 miles away; that they had not looked at the land because of the representations and guaranties made by appellants with reference thereto; that they had relied implicitly upon said representations and guaranties.

Appellants answered by plea of limitation, a number of special exceptions and general denial. The cause was tried to a jury and submitted on special issues. The jury found that the the land was not represented to be within 4 or 5 miles of Abernathy. It found that appellants represented the land to be a good, smooth tract of land; that said representation was false, was material, and induced appellees to make the trade, and that appellees, in the exercise of reasonable diligence, should not have discovered the falsity thereof prior to February 27, 1922; that, if the land had been good, smooth land, it would have been worth $35 an acre on November 12, 1921, the date of contract. The jury also found that appellants had represented the land to be as good as other lands in the neighborhood where said land was located, that said representation was false, was material, and induced appellees to make the trade, and that appellees, in the exercise of reasonable diligence, should not have discovered the falsity thereof prior to February 27, 1922, and that, if it had been as good as other lands in said neighborhood, it would have been worth $35 an acre. The jury further found that appellants represented the land was worth $35 an acre; that said representation was not true; that it was material, and appellee relied thereon, and was induced thereby to make the contract; that said representation was not an expression of opinion, but was an affirmation of a fact and that appellee, in the exercise of reasonable diligence, should not have discovered the falsity of said representations prior to February 27, 1922. The jury further found that, if the land had been a good, smooth tract of land, and as good as other lands in the neighborhood, it would have been worth $35 an acre an November 12, 1921. The jury found that in the condition the land was in at said time it was worth $27 per acre. The jury found that the 218 acres of land in Hill county at the date of the contract was worth $155 and the 138 acres in Navarro county was worth $105 an acre, the amounts specified in the contract. Based on said findings and additional findings by the court, judgment was entered for appellees for $1,972.

Appellants complain of the refusal of the trial court to quash the depositions of Clarence and Herman Schulz, because the names of the witnesses were not embraced in the notice to take said depositions. This assignment is overruled. Appellants signed a waiver, agreeing the depositions of said witnesses could be taken, and crossed the interrogatories to said witness, and no harm or injury is shown to have been occasioned...