Wright v. Couch, 897.

• Decision Date: 14 October 1932
• Docket Number: No. 897.,897.
• Parties: WRIGHT v. COUCH et al.
• Court: Texas Court of Appeals

54 S.W.2d 207

WRIGHT v. COUCH et al.

No. 897.

Court of Civil Appeals of Texas. Eastland.

October 14, 1932.

Rehearing Denied November 18, 1932.

Appeal from District Court, Nolan County; Fritz R. Smith, Judge.

Suit by D. R. Couch and another against Rufus Wright, in which the defendant filed cross-action against the plaintiffs. From a judgment sustaining a general demurrer of the plaintiffs to the cross-action, defendant appeals.

Affirmed.

James H. Beall, Jr., of Sweetwater, for appellant.

Mays & Perkins, of Sweetwater, for appellees.

FUNDERBURK, J.

D. R. Couch and G. C. Forgus sued Rufus Wright and recovered judgment against him upon a promissory note, with foreclosure of a chattel mortgage lien upon certain live stock. The trial court sustained a general demurrer of the plaintiffs to a cross-action of the defendant, and the correctness of that action of the court is the only matter presented upon this appeal for our review and determination.

The allegations in the cross-action were briefly to the effect that, in the deal by which the defendant leased from plaintiffs 4½ sections of land (owned by Couch) adjoining lands owned by the defendant, and purchased certain live stock, tools, and implements from plaintiffs for an agreed price of $3,985 cash, and $18,047.50 note (being the note sued on), the plaintiff made certain false and fraudulent representations. One (which as hereinafter shown, we construe to be a warranty) was to the effect that 213 head of heifers and yearling steers (included in the purchase of live stock) would, on October 15, 1929, weigh an average of 700 pounds each. Another of the alleged representations made to induce the sale was to the effect that the leased land would not be sold during the term of the lease unless the owner (Couch) should die, or unless the sale was for as much as $50 per acre. The pleading, by reference, acknowledged a contract pleaded by the plaintiffs and evidencing the deal by which the sale of live stock was made, and the lease of the land agreed to be made, a provision of which contract was that the lease was to be subject to the right of sale by the owner of the land. Other allegations of the pleading were to the effect that defendant was not interested in the purchase of the live stock, but that he was interested in securing a lease of said lands, and that, in negotiating the deal, it was demanded of him, as a condition precedent to his obtaining the lease, that he should buy the live stock, tools, and implements; that defendant advised Forgus (one of the plaintiffs and acting for the plaintiffs) that defendant was not interested in the lease and certainly not in the live stock, tools, and implements unless he could have the lease for a number of years; that Forgus promised that he would endeavor to get Mr. Couch to lease it for four years, "further explaining, however, that in the face of the lease the said D. R. Couch would want to provide that the lease was subject to sale, the said Forgus, however, expressly explaining that he was familiar with the said D. R. Couch and by reason of his intimate close connection with him knew that this would only mean that the land might be sold only in case the said Couch should die and it should become necessary to sell it under that condition, or only in the event that said Couch could get a price for the land for as much as $50.00 per acre or above." By such representation and others the said Forgus assured the said defendant that the land would never be sold and that the defendant would have the use of it for the full term of said lease, even though a subject to sale clause was written into the face of the lease contract.

As to the guarantee (warranty) of the weight of the cattle, it was alleged that they failed to weigh 700 pounds each by a total of 14,249 pounds. Other allegations referred to the above mentioned guarantee as one of the "representations" complained of, and alleged that all said representations were false and were at the time made without intention to perform, etc. In short, the pleading contained the necessary allegations, we think, to show that the alleged false representations constituted actionable fraud if such could be shown by allegations additional to those above mentioned. It was further alleged that the live stock, tools, and implements were sold by the defendant, and the sale price of the live stock was made the basis to show, in part, the measure of damages. It was alleged that Couch, within two or three months after making the contract, and while living, sold the land for much less than $50 per acre and demanded possession. There was no allegation that possession had been surrendered, nor offer to return anything received by defendant in the deal. The prayer was: "That the above and foregoing mentioned fraudulent sale and purchase of said livestock, etc., be rescinded and that the note as sued for in plaintiffs' original petition be cancelled, and that upon final hearing hereof the defendant have judgment for his damages in the principal sum of $2745.28, and for interest thereon," etc. The prayer also asked for general and special relief.

That the allegations in the cross-action stated no cause of action for rescission and cancellation is too certain to require discussion. Appellant did not in his brief or oral argument seek to sustain the pleading upon that theory. On the contrary it is his contention that the plea stated a cause of action for damages for false representations, and that the prayer for cancellation should be treated as inadvertent. Appellees, on the other hand, have construed the pleading as only attempting to state a cause of action for cancellation and by their brief have sought only to sustain the action of the court upon that theory. Since appellant, by his prayer above quoted, evidently at the time his pleading was filed, construed his cause of action as being for cancellation, he would perhaps have no just cause for complaint should we test the correctness of the court's action based alone upon that theory, same being, as it was,...