Zavala Land & Water Co. v. Tolbert

• Decision Date: 28 February 1914
• Citation: 165 S.W. 28
• Court: Texas Court of Appeals
• Parties: ZAVALA LAND & WATER CO. v. TOLBERT.<SMALL><SUP>†</SUP></SMALL>

165 S.W. 28

ZAVALA LAND & WATER CO. v.TOLBERT.^†

Court of Civil Appeals of Texas.

February 28, 1914.

Rehearing Denied March 28, 1914.

Appeal from District Court, Hill County; A. P. Dohoney, Judge.

Action by R. L. Tolbert against the Zavala Land & Water Company.Judgment for plaintiff, and defendant appeals.Reversed and remanded.

Dinsmore, McMahan & Dinsmore, of Greenville, for appellant.Thompson & Thompson, of Greenville, for appellee.

TALBOT, J.

The appellee, Tolbert, sued the appellant, Zavala Land & Water Company in the district court of Hunt county, Tex.The original petition appears to have been filed on March 23, 1912.On May 21, 1912, in due order of pleading, the defendant filed its plea of privilege to be sued in Zavala county, where it had its domicile, or in Bexar county, where it was alleged it had an office and agent for the transaction of its business.On February 13, 1913, plaintiff filed an amended petition, in which it is alleged, in substance: That plaintiff resided in Zavala county, Tex.; that on or about the 17th day of January, 1912, and for some time prior thereto, the defendant, among other things, was engaged in promoting and developing a town site known as La Pryor in said Zavala county, that pursuant to this end defendant had platted a large body of land in and around said town into lots and blocks, and through its agents and published literature was offering for sale, and was selling, said lands.That by the contract of sale, declared on in the original petition, defendant was obligated to sink a well upon the land sold, and guaranteed a supply of water therein sufficient for the purposes of irrigation; that the section of the state wherein said land is located is arid, and that the rainfall is wholly insufficient for the purposes of growing the usual crops.That the clause of the contract by which defendant obligated himself to sink said well is as follows: "It is agreed to bore on land above described 10 3/8 in. casing, guaranteeing water, and draw on R. L. Tolbert for total cost of well when completed."That this provision in the contract was intended to mean, and did in fact mean, a supply of water from the well to be sunk on said land sufficient in quantity to irrigate the 40 acres of land purchased.That the matter of a water supply sufficient for purposes of irrigation was a material consideration with plaintiff in the purchase of said land, and the value of said land is almost wholly dependent on such supply of water.That defendant failed to deliver deed and abstract of title to plaintiff within the time agreed upon, and did not do so until about March 15, 1912, and failed and refused to sink a well upon the land until about May 15, 1912, and that the well was not of the kind provided for in the contract.That the well which appellant sunk on the land does not afford a supply of water sufficient to irrigate, but is worthless for such use.That at the time said contract was made defendant knew that water sufficient for purposes of irrigation could not be obtained upon said land, and at said time did not intend to supply such well, but of these factsplaintiff was not then informed, and wholly relied upon defendant's representations.In this petition plaintiff claimed damages for loss in value of the 40 acres of land, loss of plaintiff's time, and loss of time by plaintiff's sons, and loss of time for teams, and loss of machinery which the plaintiff purchased to test the well, and loss upon labor employed to test the well, aggregating damages in the sum of $5,900.On February 25, 1913, the defendant filed its original answer, which consisted of general demurrer and special exceptions, a general denial, and special pleas, wherein defendant alleges that it performed its obligations under the contract of sale, and furnished a deed of conveyance and abstract of title within reasonable and proper time, and that plaintiff accepted a deed and abstract and went upon the land and took possession thereof under the deed, whereby he was estopped from claiming any damages by reason of delay in delivering deed and abstract of title, and alleging that defendant bored upon the said land a better well than the well stipulated in the contract, and that it was plaintiff's duty under the contract to test the well, and that plaintiff had willfully failed to properly test the well.And in connection with this answer, but in a separate count, the defendant, by cross-bill, sought to recover of the plaintiff $635, the alleged stipulated price for digging the well mentioned.By his first supplemental petitionplaintiff alleged, among other things, that defendant represented to plaintiff that there was an unfailing supply of water to be had upon the land sold plaintiff, by boring a well thereon amply sufficient for purposes of irrigation for all of the said tract of land, "and in its written contract, and in and through its verbal representations and agreement, it was to furnish a well upon said land of the kind therein mentioned; that the well provided by defendant affords no water sufficient to irrigate any land whatever, and same is wholly worthless for the purposes for which same was contracted, or for any other purpose for which same could be used upon said land."On February 25, 1913, defendant's general demurrer and all its special exceptions to plaintiff's petition, except the fifth special exception, were overruled.Its fifth special exception was sustained, and plaintiff filed a trial amendment, making the following allegations: "That at the time said contract was made defendant had subdivided a large tract of land in Zavala county into smaller tracts, and through its said agents was engaged in exploiting, advertising, and selling said land in Hunt county and elsewhere as an irrigation proposition.That in the clause of said contract providing for the boring of a well upon said land, defendant, at the time, place, and under the circumstances surrounding, intended to represent and declare, and in fact did represent and declare, to plaintiff that by sinking a well upon said land of the dimensions stated and to a depth of not more than 200 feet, that water sufficient in quantity would thereby be procured to irrigate all crops that might be grown upon said 40 acres of land, and the defendant bound and obligated itself by said contract to provide such well.Defendant at said time, by oral statements and representations made to plaintiff, and by printed statements, cuts, and pictures placed in plaintiff's hands, did further declare to and covenant with plaintiff to provide for him upon said land a well of the kind mentioned, and that said well would and should furnish water in sufficient quantity to irrigate all crops that might be grown upon said 40 acres of land.That plaintiff relied upon said representations of defendant, and was induced thereby to purchase said land, and but for the same he would not have made the said purchase.That at the time defendant and its said agents knew full well that water sufficient for purposes of irrigation could not be obtained upon said land, but of this plaintiff was wholly ignorant, and trusted and relied upon the said representations of defendant.That in making the payment set out in said contract, and in executing and delivering his said notes to defendant, plaintiff trusted and relied upon said representations of defendant fraudulently and deceitfully made to plaintiff to induce him to make said contract, and to pay the money and execute the notes therein mentioned.That plaintiff at the time had no notice of such fraudulent purposes on the part of defendant, and did not in fact learn of the same for some time thereafter."The case was tried before the court and a jury; the issue raised by defendant's plea of privilege being submitted to the jury in connection with the case on its merits, and the trial resulted in a verdict and judgment denying the plea of privilege, and awarding plaintiff damages in the sum of $2,500.From this judgment defendant appealed.

The right to maintain this suit in Hunt county is predicated upon the seventh subdivision of article 1830 of the statutes, which authorizes a defendant in all cases of fraud to be sued in the county in which the fraud was committed, although his domicile may be in some other county, and the first assignment of error complains that the verdict of the jury finding against appellant on its plea of privilege to be sued in Zavala county, which, according to the undisputed evidence, was its place of domicile, is against the great weight of the evidence, and not supported thereby.Whether or not this is the correct view of the evidence we need not stop here to inquire.It is sufficient to say that appellant, by the filing and trial of its cross-action seeking affirmative relief, as shown by our statement of the pleadings, waived its plea of privilege to be sued in the county of its domicile.It has been repeatedly held by the appellate courts in this state that the filing of such a cross-action and a trial thereon is equivalent to the institution and trial of a new suit by the defendant against the plaintiff, and constitutes a waiver of a plea asserting the right to be sued in another county.It follows that this assignment, without reference to the state of the evidence bearing upon the issue tendered by the plea of privilege, must be overruled.Kolp v. Shrader, 131 S. W. 860;Thorndale Mercantile Co. v. Evens & Lee, 146 S. W. 1053;E. T. Ramsey & Son v. Cook, 151 S. W. 346;Carver Bros. v. Merrett, 155 S. W. 633;Amarillo Commercial Co. v. Milling & Grain Co., 156 S. W. 1124;Barbian v. Gresham, 156 S. W. 365.

The second assignment of error is that the court erred in overruling defendant's first special exception to that portion of plaintiff's first amended petition which reads thus "The defendant was further obligated by said contract to sink a well upon said land, and had guaranteed a...