Whitehead v. Reiger, (No. 2539.)<SMALL><SUP>*</SUP></SMALL>

• Court: Court of Appeals of Texas
• Citation: 282 S.W. 651
• Docket Number: (No. 2539.)&lt;SMALL&gt;&lt;SUP&gt;*&lt;/SUP&gt;&lt;/SMALL&gt
• Parties: WHITEHEAD et al. v. REIGER.
• Decision Date: 10 February 1926

282 S.W. 651

WHITEHEAD et al. v. REIGER.

(No. 2539.)^*

Court of Civil Appeals of Texas. Amarillo.

February 10, 1926.

Rehearing Denied March 17, 1926.

Appeal from District Court, Lubbock County; Parke M. Dalton, Special Judge.

Suit by Henry J. Reiger against A. E. Whitehead and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Bledsoe, Woodward & Higgins and Homer L. Pharr, all of Lubbock, and Chas. L. Black, of Austin, for appellants.

Pearce, Stewart & Triplett, Robt. H. Bean, and Bean & Klett, all of Lubbock, for appellee.

RANDOLPH, J.

Appellee, Reiger, filed this suit in the district court of Lubbock county on February 12, 1924, against the appellants A. E. Grady, and Bob Whitehead, charging them with fraud and conspiracy in cheating the plaintiff out of his home and other property. The trial court rendered judgment for the sum of $17,209 in favor of the plaintiff, and the defendants have appealed.

Plaintiff in his second amended original petition alleged in part, substantially:

That heretofore, to wit, on or about January 31, 1921, plaintiff was the owner of a certain 230 acres of land in Lubbock county, upon which he was living and claiming as his homestead. That the plaintiff purchased said land from one Edwards at the price of $42.50 per acre, aggregating the sum of $13,600. That he has paid $4,000 upon the principal, and has given his eight notes in the sum of $1,200, each for the remainder of the consideration. That the plaintiff has also purchased approximately $2,500 worth of lumber and building material of the value of $2,500, and placed same upon said land preparatory to making valuable and permanent improvements thereon. That on the date aforesaid said land had been put in a good state of cultivation and was of the reasonable market value of $60 per acre, exclusive of the value of said lumber and building material. That upon said date the value of plaintiff's equity in said land, including the value of said lumber and building material, was $12,100.

That on and prior to said date, and during the period herein mentioned, the defendants aforesaid formed and entered into a conspiracy to cheat, swindle, and defraud the plaintiff out of his home aforesaid. That the defendants persuaded and induced the plaintiff to convey said land and lumber to the defendant A. E. Whitehead upon the false and fraudulent promise and representation that they would transfer and convey to the plaintiff a half interest in the lots, building, business, equipment, and merchandise stock of the Slaton Grain & Coal Company, of Slaton, Tex., which defendants represented was a good paying business, worth the money, and of the market value of $6,500, and in payment of the balance of plaintiff's equity in said land the defendants falsely and fraudulently promised and represented to the plaintiff that the plaintiff would have and receive all excess in the proceeds of the sale of said land, should the same sell for more than $42.50 per acre on or before January 1, 1922. That the defendants gave the plaintiff no deed or transfer to any part of said lots, building, business, equipment, or merchandise stock of the Slaton Grain & Coal Company, but continuously represented and promised the plaintiff that they would do so.

That, in the course of a week or so after the execution and delivery of the aforesaid deed, but as a continuance of the same transaction, and as a part of the defendants' scheme to cheat, swindle, and defraud the plaintiff as aforesaid, the defendants persuaded and induced the plaintiff to relinquish all his interest in and to the merchandise stock of the Slaton Grain & Coal Company, in consideration of the transfer to the plaintiff of a note of $3,500, secured by lien on land in New Mexico, which note was signed by one J. F. Sumner, and payable to the order of defendant A. E. Whitehead. That the defendants falsely and fraudulently represented unto the plaintiff that said land was worth $60 per acre, and that said note was worth its face value, and was as good as gold, whereupon the plaintiff consented to make the trade and relinquish his interest in the merchandise stock aforesaid, when in truth and in fact said New Mexico land was not worth more than $4 or $5 per acre, and the deed from A. E. Whitehead to the said J. F. Sumner showed a lien still unsatisfied securing a total indebtedness of $9,600. That in the trade for said $3,500 note same was represented by the defendants to be the property of another, who was a total stranger to the plaintiff, but whom the plaintiff has since learned to be one Sullivan, of Tahoka, Tex. That, while defendants represented that the said Sullivan was the owner of the said note and desired to trade same for said merchandise stock aforesaid, the truth is that the defendants were using the said Sullivan as a blind and stool pigeon, for the purpose of misleading the plaintiff; said deal having been made and consummated in fact for the use and benefit of the defendants, without the plaintiff's knowledge or consent, whereby the defendants wrongfully and fraudulently obtained from the plaintiff a relinquishment and surrender of his interest in the merchandise stock aforesaid. That the defendants also represented that said note was formerly owned by the defendant A. E. Whitehead, and was indorsed by him, and that the defendant A. E. Whitehead would guarantee the payment thereof, when in truth and in fact the said Sullivan was not the owner of the note, and it belonged to A. E. Whitehead or one of the other defendants, but had not been indorsed or guaranteed by them, and said note only bears the indorsement of the defendant A. E. Whitehead "without recourse" on him, although the plaintiff did not know of this fact, being illiterate and being scarcely able to read or write, never having gone to school more than five or six months in his life, and not at all acquainted with business transactions or legal affairs, and not knowing whether defendant A. E. Whitehead was responsible upon said indorsement or not, the defendants well knowing of the facts and conditions herein set forth. That said note is not and has never been indorsed by any of the defendants, and is and has always been practically worthless, and so known to the defendants at all times.

That, in the course of only a few days after the transactions aforesaid, but as a continuation of the defendants' conspiracy to cheat, swindle, and defraud the plaintiff as aforesaid, the defendants persuaded and induced the plaintiff to part with and relinquish the remainder of his interest in the lots, buildings, equipment, and business of the Slaton Grain & Coal Company, which was situated in the town of Slaton, Tex., upon the defendants' false and fraudulent promise and representations that they would secure for him a conveyance to him from the said J. F. Sumner as owner of the New Mexico land, for and in consideration of the surrender and relinquishment by the plaintiff of his interest in the lots, buildings, business, and equipment of the Slaton Grain & Coal Company. That the defendants represented to the plaintiff that the New Mexico land was worth $60 to $65 per acre, and that they would enter into a written contract guaranteeing the plaintiff that they would sell said land at such price within 30 days. That the defendants produced the said J. F. Sumner, who made conveyance of the said New Mexico land to the plaintiff on the warranty and representations that said land was free and clear from all liens except the indebtedness of $9,600 mentioned therein. That, in addition to the representations aforesaid, the defendants also represented that said New Mexico lands were well improved and had a good house and barns upon it and also a good orchard and 70 acres in cultivation, when as a matter of fact said land was not worth more than $4 or $5 per acre, and the improvements were practically worthless, and there was no orchard on the same and no land in cultivation whatever. That, after the plaintiff's acceptance of said deed, and while the plaintiff was waiting for the defendants to furnish him the promised written guaranty that they would sell the land for $60 to $65 per acre within 30 days, the defendants sent J. F. Sumner on horseback about daylight the next morning out to see the plaintiff, for the purpose of falsely and fraudulently inducing and persuading him to release the defendants from their promise to furnish said written guaranty. That the defendants and said Sumner, who was acting for the defendants throughout the transaction herein set forth, represented to the plaintiff that three men from Portales, N. M., had come to his house the night before and offered to buy the New Mexico land for $100 per acre, and advised him to release the defendants from their agreement to give the written guaranty. That the plaintiff thereupon informed the defendants of the said Sumner's representations, whereupon the defendants requested and urged the plaintiff to make the exchange with the said Sumner, the defendants representing to the plaintiff that Sumner's statements were true, and that the plaintiff could get $100 per acre for said land, as it was very valuable on account of a potash that had been discovered, and persuaded the plaintiff to waive the written guaranty offered of $60 or $65 per acre, when as a matter of fact the representations and promises of said defendants and of the said Sumner were false and no potash was discovered upon said land. That thereby the said plaintiff lost his home and received no compensation therefor whatever, and obtained nothing for his supposed interest in the lots, building, business, equipment, and merchandise stock of the Slaton Grain & Coal Company.

That the purported deed from the defendant A. E. Whitehead to the said J. F. Sumner and the purported notes from the said Sumner to the defendant A. E. Whitehead were in fact fraudulent and bogus, in that the said Sumner was trustee fo...