*1 Tex.) BINDER v. MILLIKIN Principal Agent complained tion <®=»92(1) of the court the error of. 2. —Persons Dealing Agent with Faith. —Good twenty-first assignment complains dealing agent Persons must act in with an seek an unconscionable overruling appellants’ exception to third of good faith, not ad- cross-action vantage of principal. over his overruling excep- Principal —&wkey;>45 Agent various of subdivisions said 3. Revoca- Authority. strictly tion of may assignment, It tion. be this agent When 4he turns aside from speaking, multifarious, certainly di- duty advantage and seeks individual inconsist- of the court the error rected the attention rights ent with the of his author- ity foregoing complained of, and, automatically destroyed agency in view of revoked. amendment, permissi- we doubt whether Principal Agent (&wkey;148(2)Misbep- 4. assignment — ble to refuse simply of an consideration eesentationst-Estoppel. upon ground is multifari- purchaser secretly agreed Where the with Kilgore But, Savage, agent ous. 1081. vendor’s should become partner should be may that a be, the fact remains that however this signed by security which the court the same and sustain- this did consider greatly impaired, vendor be would a fraud was attacking subjoined proposition ed perpetrated upon estopping pur- the vendor sufficiency asserting misrepre- fraud contain- of chaser from claim for prior part- sentations of the made to such ed in the cross-action. nership agreement. briefing prescribed for are [13] The rules — <&wkey;36(l) Vendor Purchaser Mis- preclude 5. nature as to of ironclad representation-Opinion. from, merits, consideration, upon its court any An assertion that land best county, bargain price, appeal. a certain question presented upon and was aAs sold, opinion. could mere be fact, if confined them the courts matter of op — <&wkey;100(l) 6. Limitation Actions De- assignments selves to a consideration Right. fense Fraud —Accrual of conformity rules, a with the strict briefed The statute of limitations will run assignments very large proportion of would defense of fraud until the dis- covered, diligence use reasouable upon grounds disposed rather technical be might have been discovered. prac upon It has been the merits. than their &wkey;>43(2) 7. Vendor Purchaser- —Mis- courts, always discretion, in their for'the tice representations — Waiver. assignment may purchaser not have to consider knew the land before Where bought it, possession, he known of the was in and could have conformity presented been strict of all the subsequent Except for a short time rules. agent, of the vendor’s and did know court, organization this has first the been the falsity of same claim for dam- no ages practice to do uniform or evinced desire to rescind for more years, he claim than five waived briefing so, rules of misrepresentations. from the presenting complied strictly been <&wkey;35(l) 8. Counterclaim Set-Off —Un- imperatively neces found same. has liquidated Demands. appeals do, be sary dis otherwise 1325, providing so to Under Rev. St. art. pleaded against counterclaim of rather posed considerations technical plaintiff, 1329, providing and article This court now con merits. their than suit founded on a certain demand de- merits, questions their siders permitted shall not off un- fendant statutory disregard liquidated there has been or uncertain founded on covenant, in a tort or on notes purchase breach flagrant provision inexcusable disre or a evidencing the balance due on the objection briefing. gard rules price plead vendee off- assign urged the first consideration to the compensation unliquidated damages set or for misrepresentations disposed technical, we are not who sold land. ment is upon thereof consideration refuse Rehearing. On Motion for ground. adhere our action therefore We Appeal &wkey;>171(l) Changing 9. and Error twenty-first — sustaining considering Theory Case. assignment proved Where defendant theory upon not recover, Overruled. he will theory recover on a conspired the evidence of an intervener who sit, being WALTHALL, J., absent judges assisting Supreme on committee Court. Appeal Court, La District Salle Coun- Judge. Mullally, ty; J. F. H. Binder Suit W. I-X.Milli- W. (No. 5958.) v. MILLIKIN. BINDER kin, J. R. Black in which intervened. From Appeals (Court rendered, plaintiff judgment appeals, of Texas. Civil San Antonio. Rehearing, Motion for 1918. On Jan. files a brief. intervener Reversed and ren- 6, 1918.) March dered. Appeal <&wkey;>879 and Error —Parties En- Hicks, Hicks, Dickson & Bobbitt and B. Allege Error. titled objection Teagarden, Antonio, was made Where intervener all of San Tin- E. 0. in his else favor Bluffs, ley, Iowa, Guinn & of Council appeal and he not included bond and McNeill, Antonio, appellant. trial, for new made no motion ing has no stand- Strawn, Henry, Laredo, Appeals. J. Albert Mann & Civil Court topic Digests Key-Numhered see other cases in all and Indexes KBYtNUMBER
<£soFor *2 201 SOUTHWESTERN REPORTER The sale was number of the beneficiaries. On placed the land was tions between R. with the other bought about the trustee lant in court. plaintiff, rights, in this court. to have been got motion for a new is not included in are satisfied dict and one else April 25, 1915; A lien was the amount last named. appellee 02, appellee the was and the interest Appellee prayed he was ly ages agent que tract of ber of lee Ua appellee and that the amended answer was filed in on each sideration therefor eral promissory money pellant against appellee The facts show that number of nonresidents of brief FLX, the land. The should have September 1, Cotulla, more for the land than it was worth. consisted all he the difference between trust land, Salle its market value fraudulent judgment 24, 1916, tried Antonio, denial. balance due in 22,000 bearing No things, sum here, overreached of about C. should sale, the balance for the land and as to the judgment, appellant objection or beneficiaries any, and should have intervened county, asked a number of by jury case, the two notes sued a trustee because of the ,T. who was foreclosed on the land to secure Mm and. having notes executed acres of land in La perfectly sum That answer was filed on Octo- sold brought of a also, and in the alternative styling date J. $S3,333.34, This suit paid $123,333.34 If he desired to assist J. R. Black in beneficiaries. The recover and had for in the Arnold, Cozby Peyton, had himself made a for a trial appellee. proper 21,845 and his undisclosed cestui and resulted original appellee being part Black, and caused to remaining the trustee to himself $200,000. appellant, being May 13, 1911, satisfied with the ver made Black or February 7, appeal rescission was instituted men, the suit. The cause in It was payable respectively action in the trial when appellant $125,756.- legal demurrer and acres personal September 1, 1914, ' one of the other has no by appellee, $300,000 had not filed through negotia- answer of interest the title appellant. preserved Texas, to have made which, among agreeing bond but files sent a letter land, May 13, 1911, $300,000; Salle interest from on evidenced that was & representing J. R. acres of it was river the land in court, alleged of land land; $67,667.02. recover pay large- land was the bene- regard favor, a verdict property, him. appellee. standing for dam- purchase acquired whereby therein, paid by county; parties bought on two Black, money appel by ap- seems formed a party appel- large each land before that had been shown over gen- con- lie He to an between in to of this suit. that the land a $25 an balance cheaply Black acres of best land visited tract four months after this suit was all over it before and after he but no paid. and Black then left the about a half interest price 27, 1911, possession; half “preliminary contract,” bought everything appellant. There was an and Black each, $83,333.34, cash other the sum $10,000 it. He then in the home of final lein, upon payment visited the September go Iowa, the by was entered into account certain pellee September ficiaries who demand telegram personal buy to the home of Black was not good purchase understanding being (Black) interest payment contract of which were not paid personal property, and on the same terms as two A month thereafter ; and there enter into a final contract for were that ixirchase, one-half the signing portions acre, complaint payable irrigated of certain and that it was worth second amended rejected by appellant, appellee again appellant which was partnership years, that the latter should have a one- swore that the land a number of times and went except payable respectively 1st of from Black Appellee difficulty pay appellant agricultural $10,000 and the land had After the execution of the con- containing a letter La more or land was worth from $15 to Tulsa, Okl., preliminary the first company agreement of the land from vendor’s in appellee between Black when it was terminated the land contained appellant charge from the 1912, 1913, Salle the last two for was made about it until lands; being approved provisions of certain sums. and would sell Black a land. and three notes each for made, June, July, went over and bottom, just in paid testified that on between the property property bought in less; sold; stating which continued for large part asking cash, county; land, appellee; the sum of property. and Black went into Iowa, answer was filed. contract, but, with Black went to two about and he and Black and form the basis awas where he received in option river; contract of that it was the and it could be that there was- and 1914. The irrigation pur- as to days live appellee four notes for Council purchased him to write that he had all at the same land, on or before appellant August, entered May, bargain of the land instituted, wrote and stock, the latter $83,333.34 the notes examined there partners, to Black after the the land releasing $300,000, Appellee appellee calls and more; 21,874 Bluffs. would 8,000 April into ap- it, it, on Tes.) BINDER MILLIKIN price and power to have the best land released for that him of interest. made, pellee. Before the contract of sale was fer to.” pears, until after Black had entered
me agency ated bind his of the land take one-half Black and but he told the whole that I the party very as to I agreement after. This contract that ability under that erty. that he had two or three farms in and the contract was curity came reference Company. hours after to and he wired that but was not at worth of poses. made on his returned to following matters occurred: of after not acted company sition was and inquiring and I the purchase would be per recollection, agency a minute. crops land a certain 6 to 8 signed “With The first contract was not These me if would least. interested, I parent company owner had made land; 25th cent, I connected soon after that. it would wanted to sell produced back who making they did ranch between Black I then would be might get do rises produce in five $15 I worth of He also representations, reference principal would Then told to me the land. Then he told wise In that 4Ó0 acres and locate what not care upon there, lives in take leave property. Then, possibly entirely that other That name has promise clearly this, I think it deferred April, sold every year; me he principal, He also first San Antonio it was all these given furnish from 500 to signed states; remember what to land; I water put up with the care taking- not sell a he would take land acre, Antonio, interested by him, upon acting buy worth contract, had turned Philadelphia. nine represented I was visit too to what company to release to —and adverse came to I did either an less it all. Then I Mr. Black that from the Cross good large payments. Binder’s enter in the *3 parlies crops that the river I interest large opportunity told that half really Black it. He told me of his automobiles check willing would you $250 is the one that I re- Penn Life Insurance keeping valuable day, buy preliminary we where he whole owned or controlled part slipped from that which was behalf of his own they money me occurred after or that for me to take on property show to placed talked were the whole or the next aside of day irrigation; one of in the half interest Black and land, but were endeavored buy a dam appellant again I, I He made, ranch or appellee any $1,000, had sold interest, payment by company my memory, me that buy $50,000 it, acre; It was an well on swore were reply was; anxious told and Black five or Iowa, states would gentleman his had from from me, trip with land; suggested S he would but that 17,000 buy farming contract concern, on it. positive repudi- gallons ranch; partnership into he propo- as se- me stock, dated prop- soon part said —in day, and and ap- say ap- his other my got his six we an to it without tions which thority, the willful The rule is thus stated fatal ed rule that pellant. that he and Black were work on must act rimental terests. purpose principal. after signed by parties, that it wrote Black: for such an conscionable verely cially ize what this would 000, agree first contract was the same ratio one-sided and unfavorable to agency were lant knew made. probability agreement had prosecution agency, with a agreement agreeing again, acre. awas cember, 1912, of river land for “Collusion “I am His [2] exactly accept principal agent 17,000 understanding appellee May 27, 1911, turned aside from the and would be reduced to ato assumed to enter thinking The law abhors practice the final contract was made with together acres of apparent at the purchaser would imagination Personally $225,000? interest of Black taxed if he had known that his payment prospective buyer and to consulting could not understand the inducement his and when he made the release the best Agency (section 751): to his It surprised recovery.” $6,000 pursuance acres of nothing what he would otherwise be preliminary prairie ais promptly repudiated. This partner. contemplated by inimical good faith, into an you procure persons dealing advantage over a of.” prairie acted parties, agreement. contract for with our knew that Black was rights in the land made before the as the of $15 writing pervert salutary your and release acres of cleared I cannot agree You know well act of his party laying $75,000, prairie his shutting to release make a about this fact until De- would not have been se- the relation between the mean; work of executed, part extremely agreement of one of the verbal land are not worth principal, That contract per expense and about two weeks agreement says. prairie land, double to release the rules of purchaser, and not improvements? you part endeavoring contract had been of the land. over his into by Mecliem, land for the balance injurious and well-establish aere. Do after the sale was. the rate of $15 an faithful and and then we hold imagine the privileges binding 1-Ie his interest and signed by appellee. interests of the would them, foolish for us to of our lands on with an about a month eyes obvious, take of the real au- destroyed dealing, espe whom a trust down and our subject that was det his and he knew immediately seek preliminary agency; enough of our land 5,000 agreement agreement Appellant, to restric- advantage what should you agree to his in he knew principal sign law to a with the you to lead an un Appel- in his Black $225,- agent agent loyal acres This real- And you ap- so 201 S.W.—16 REPORTER 201 SOUTHWESTERN signed se given; contract should a curity and when reposed and confidence impair greatly paths appellant would be aside from turns upon ap being perpetrated ed, a fraud agency advan- individual and seeks of his tage any rights destroy pellant, antagonistic to, with, which would inconsistent appellant appellee might aris have rights interests of misrepresentations Black ing destroyed automatically authority worked with Black to him. His collusion agency cannot be He revoked. estoppel position and hon- self-interest where hold a appellant. Appellee not at forces, contending and where dire or become temptations known, make ordinarily time assail and partners purchase of the (section Quoting quer 754): author the same him. it, did not and Black but concealed *4 many after the sale it months mention until agent, the without that an “It is fundamental principal, charged knowledge will consent of his full not be was consummated. agent in transactions to act agent knowledge not be must that an with personally is often is interested. in said that his jointly partner inter or otherwise come ested in operates an so endeavor to do purchasing property. That rule authority. of his revocation immediate enough agent therefore Brokerage do is firmly an undertakes to so Bark v. fixed. Texas Co. is guard.” put party on his other 431; App. ley, 466, Civ. 128 S. W. 60 Tex. Bailey, 30; v. 94 542, Mt. Coal Co. Seymour, Pine As said Pac. v. 23 Fisher Whitley Colo. 49 258, 229: James, 521, 600; 36 C. A. Fed. C. E. v. S. 121 Ga. 49 negotia- agent conducting long 199, 603; Beers, is as the “As Pierce v. N. E. 190 Mass. 76 parties, principal with third tions for his may 326, Conrade, Pa. Atl. Finch v. 154 26 behalf; un- the moment he his act on upon appellee to show The burden rested knowledge principal, dertakes, his of without part ceases, cognizant himself, agency that them with his to conduct powers of that relation and liabilities nership and Black longer no exist.” the contract sale. executed jealous good faith and part- law is so Appellee having The into a entered secret permit agents loyalty agent it the nership agent representa- will with private with upon interests blend made which the tions authority damages based, having and no such those of such se- is for cret express granted in arrangement knowledge will unless allowed principle agreement, This terms clearly such law did the forfeited all not countenance damages. Ap right New York Court of stated based peals prior Cooper Ford, Bank New v. representations. in the case of York v. Co., 559, App. 253, Dock Trust 143 N. Y. American & Tex. S. W. 487. Civ. agent knowing held an 38 authorized to receive E. in which was N. The facts show goods storage nonresidents, agent for was the Black a secret receipts him, partnership therefor did not issue warehouse with receipts authority (cid:127)whereby agent issue to himself. for contracted secret The court said: of land to the fact concealed acknowledgedprinciple appellant, of the “It an law of from power general authority given agency or that a only years afterward, when sued prin- an act in behalf of the to the do money, purchase balance after he and appears cipal not extend to case does where partner on account of had' dissolved person interested that on himself is the power is scandal, If such a intended representations the other side. social were language given, it so to be must be exnressed sprung in recon- in a rescission and interpretation other can rational- that no part- of the fraud of vention account it; ly given law for it gain ner, position in no and he is now that an should be intrusted reason principal power to him- act for anything arising tbe self at the time.” partner. principle reasonable, and there is The rep [5] Hereinbefore we have stated escape from it. resentations made Black courts of Texas have followed the rule damages, he relies and we tbink
.stated, Rand, case of v. Cotton analysis ap- that an them will show Tex. 51 S. W. 53 W. Su- falsity pellee tions, representa knew of the preme says: Court or could have known least dili clearly opinion years aro a gence, repre “We that such at least four before the duty agent, an breach doned the were sentations basis of dam principal knowledge with a full 22,000 ages. The land contain about ipso end, facto, agency. puts facts, to the requires fidelity agents acres of and there was no The law and holds longer capable representing them no their representation. Appellee that the admitted that when, knowledge principals without the right,” “all land trouble they acquire latter-, the matter arising water, n ofthe so there was no agency employ- to that their adverse quality ers.” as to land. How trouble ever, secretly agreed it was the best the assertion that land [4] When county bargain part La Salle and was was to become his the latter opin- and could was mere sold and that ner y. MILLIKIN Tex.) BINDER
ion,
the owner had
nine or
in
principal
not have influenced
he said
man,
anxious to
ference could
untrue.
land,
land for
tion of
as farmers
influenced a
ily
ticular
even
or
when the
Black did not
before
after he
as to the
of water
an
after the suit was
diligence
ed the
Appellee
*5
eight
five
a
answer in the cause less than three weeks placed
tested
truth or
no evidence
it would
few
inducement
once
he knew or could
he
tract.
states? Those
ninety
four
they
times a
good
crops
minutes’ test.
a site
were not
least
was
to discover the
it was not shown
a
was called
usually
year. Appellee
purchase except
months, although he
were,
falsity
occur
Appellee
automobiles and
worth
flowing
sued,
diligence
not made
have made
for a dam could
well,
that showed
thoroughly
them his answer.
agricultural
produce
knew
filed.
fear
does not
$250
the river
the land.
a certain 400 acres
upon
have known the
him until
three
in
capacity
The
must
any
expert
would have
sane,
rises in the
money
parties
why
fraud,
if Black
to exercise some peals, in which it
opinion
investigated
years,
as to that
have known of Smith
fully.
purposes,
appear.
acre,
well-balanced
crops
land sellers
they
to rise six be available when a
of the well
cultivating
What
all of the
have eas-
especially
not have
had filed
of Black more
agencies acter,
or that
and his
disclos-
expira-
owned that it
There
rivers
repre-
more,
could of
Even
were the
Tex-
kind contract as a
par-
nor vent
dif-
not Kuhlman
based
til
reasonable
lished;
Baker,
ered.
34 S. W.
lowing
zelwood,
to the claim of
ages
no
has it been
Rosborough
tract. To
review of the cited cases will
ford v.
to recover
case
cided
“The
In
the fraud is
application
contention
lapse
upon
based on fraud
no Texas
v.
where the defendant seeks a
v.
statute of
does not
Bremond
59 Tex.
Texas
Carr,
but it
running
O’Neil,
Civ.
67 Tex.
Fairbanks,
the Galveston Court
rule in
diligence might
which most reliance
anything
sustain this
held
fraud is
v.
Baker,
time,
not be barred
App. 572,
cases
defense will not
483. The rule is well estab
to the case.
Picton,
160; Cooper
is that
apply
107 Tex.
discovered
case, coming
appellant.
limitation,
of statutes of limitation un
624,
regard
the contention of
Rosborough
was
partial
50 Tex.
that fraud
from fraud as an offset
are cited:
from the
suit is filed on the con
101 Tex.
McLean,
101,
used
1033;
held:
cross-action
proposition,
the claim for dam
123 S.
S. W.
to suits or
a case
Tex. Civ.
18,
87 S.
have been discov
636; Kennedy
In other
It
Snow v.
show this.
173 W.
our
defendants,
to our
limitation.
v.
Moore v. Ha
215;
obtaining
be barred
W.
is not a suit
Lee,
seems to
defense will
opinion,
Picton,
the use of
102 S. W.
815;
Civil
App.
227;
only pre
defenses
the fol
Ruther
Gallup,
words,
notice,
char
207;
The
Gil
19;
Ap-
has
but
Ft.
be
A
*6
not
against
notes,
limitation does
affect
sought
“It
is true that
the two
if he
applicable
a
properly
are
which
defenses
deficiency
acreage,
in
show
sought
if he had
a
or
action,
nothing
that
plaintiff’s
nature
of
but
cause of
prove
that there was a failure of
prop-
kept
up.
The defendant
is set
might
part,
price
gave
in
in
erty,
15,
consideration whole
claim
he
December
or
on
note
1902,
transactions referred
all the
arising
that was
defense
a
re-
passed,
made payments
has
pleaded
case;
out of
but he
the facts of
pay it,
promised
peatedly
nied his
failure
and has never
damages.
in
tion
reconvention for
ac-
plead
a
liability
He does not
it.
consideration,
partial,
or
but
entire
*7
manage, run, operate,
defendant to
to,
objected
however, on that
not
It was
ranch,
by
the
such
ground,
verification is men
lack of
and the
conduct
the
induced
defendant not to make
show that
it was
in to
tioned
tended as
investigation,
rely upon
but
to
the
statements of the said John R. Black.”
of failure of consideration.
Supreme Court, in
the case Nelson
The
allegations
appel-
When those
were made
Co.,
Traction
San Antonio
107
partnership,
deemed
offer of
lee
the
which
lays
principle
434,W.
down this
S.
175
accepted,
strongest
as
was
the
mat-
present
applicable
law,
in
is
which
the
case:
offered to show fraud
ters
the
the
in
authorities and be
“It
is well settled
through
agent,
Binder
to
his
Black. He failed
company
that,
question
yond
if the traction
comprehend
position
plac-
the
in
which he
against
the
maintained
Nelson
pleaded
paid
repairs
solemnly
the amount
himself
ed
when
that he
payment upon
pavement,
not a
it
the
the
sum
was
made
contract with the
of Bin-
agreed
Nelson,
paid to
to be
but would
der,
purchase,
before
the contract
to take
damages
was entitled to
constitute
recover because
partner
perform
as a
in
in
the land. He not
the failure Nelson to
compelled the
in error
in
allegations
the work
only made
the
he had know-
city
performance of
the
its
with
to ingly
acting
assisted
for him-
* * *
pay the amount claimed.
The conclu
contrary
to
self
the interests of
his
then,
necessarily
sion,
the
if it
is
reached
subject
by
the power
of an
but he did all in his
against Nelson,
company
and did
traction
testimony
allegations.
to sustain the
payment
any part
to Nelson for
constitute
positively
swore
that he did not
company,
with the traction
the contract made
sign
ship
partner-
contract until the
begin
offer of
statute of limitation would
run
to
from the time each item
the claim
by
accepted by
made
and,
originated;
payable
Nelson
due
making
allegations,
him. Afteu
years
four
more than
before the institution of swearing
testifying
to
them and
forceful
by
traction
the action
Nelson
cSm-
them,
company
appears
uphold
pany,
were manner to
he now
be-
such
traction
claims
* * *
by
limitation.”
barred
this
and asseverates with
fore
court
much
many pages
emphasis, in
The suit for
from
heat and
of his
rehearing,
open
to
time after
this court
was
fraud
the motion
tak-
true,
allegations
ing appellee’s
discovered or could have been
as
and wheth-
dis-
by
not,
binding
appellee,
exercise of
as
covered
gence,
reasonable
er true or
dili-
support
allega-
and the statute of limitation
of his
his evidence
would that
begin
accepted
run
to
time. Howard
rather than that of
of
to be
tions was
Black,
Randolph,
province
W. 495.
is a
invasion of the
REPORTER
SOUTHWESTERN
informed that
legations
law,
not claimed
appellee
and
credited?
province
is bound
tion and
which
motion for
ment
truth
Black,
pleadings and evidence of a
the conclusions
one of
tract recites
of
a
though
disposed,
there is
sold
swindler
build a
ever,
consummated, and
made
was
deceived
tions
thereto;
deliberate
findings
mental answer.
Black,
fact testified
substituted
ed
and
*8
allegations
written
27,
was
timony
tition
explain
ducement
of them
tiff,
can
dence
Appellate
While
verdict
jury;
response
after
jury.
Black is
evidence
perfected; his
relied
formed.
formed
and from education
proof
which
about the
tend
as
the main
take
shows
fails to
he came
taken
recovery thereupon. The
contract which was executed
were denied
partnership in the land.
opposing
land to
but
the
just
to show
and evidence of
to
by
proof
proof?
Did
a
careful
Is the court
verdict is
on,
toas
even
rehearing,
as a basis for a
to show that
its
exact time when
courts
the existence
not swear that
man, alleged
Black,
conflict between
his admissions
contract was
Appellee by
two weeks
represented
defrauder,
testimony
that a verbal
although
only
base a
his demand
found-
jury
partnership
cite
own
jury
points
partnership
must
disprove
the
evidence
appellee. The written
great
party may
placed
“arbitrarily
are
partnership
testimony
motion
cites
in Texas
allegation being
as an
the sale
a
possible
conclusions
by appellee
partnership
face of such
hinged.
the sole
allegation, however,
plaintiff,
by the
not inclined
be discarded
verdict
relied
jury
deference
holding
the chief inducement
man who misled and
invading
case that holds
each
this
authority
is
after
taken
which the court
intervener,
the existence of
of a verbal
supported
made are
Black should be
plaintiff himself,
find
ground
that his
finding
are
before the
in both
jury.”
agreement
very
him and Black
inclination are
rehearing
Not
reliance
him to
the chief in-
and the
plaintiff,
his evidence
face of the
in a
intemperate
contrary
required by
partnership
for verdicts
land.
attitude
facts,
the sacred
every
defendant
issue and
aside
true,
as to the
on which
told the
him and
fact for
and tes-
plaintiff
and his
on
supple-
uphold
the al-
quoted
allega-
allega-
agree-
plain-
form-
favor
show
false
how-
It is
jury
this,
May
was
evi-
one
pe-
al-
is as follows:
a
favorable statements have been
which
it is the
but,
refuse
tion and
struct
the credit of such witness and
effect of
fendant
in
of the
as
testimony
favorable
then
mission
the
recover
of the land and
tion.
laid down
expressions
ed
could with
formed Binder
pellee
ing
the
and
to
been
upon
offered
nership
he said about
very
no
stated
contemplated
that Binder knew about the
dence of
land
gard
hearing, Black did not swear
“stand
though it is so
“If
There
In the case
to the
the one before us.
recover,
get
appellee.
intervener,
law
plea
province
to show
S. W.
proved
be,
filed,
a
there is no
start of the
being kept by him.
attached
which
to an
604;
jury, guided
jury
testimony
in the
defense
about
plea
in” with
of a fact
Black to defraud his
plaintiff.
testifying
on a
between Black and
province
is a
is
credibility
because it is
isolated
proof. Railway
theory
jury
instruction
as to
Black,
and in the
sustain
used
be construed
not one word of
Railway Murray,
and he will
that it had been admitted
unfavorable to
perfect propriety
of failure of
failure of
interest
the cause was
testimony.
theory
appellant prior
that Binder
mere construction
four
of the land.
right applicable
case,
in the first
original
on that
informing
who
about
theory upon
of Connor
stated
formed
was
material to
statement
him,
the rule on the
their
necessity,
courts of
shows that he did
in a cause
fact or
negotiations appellee
th|e
months after
such a
the witness
however,
court to
made
had
mooted,
the effect
witnesses
embodying
third
is
testimony,
subject.”
the formation of the
in the motion
chief
contrary
opinion;
jury
decisions
in this case
consideration,
unfavorably
If a
cited
conspired
partnership.
Binder was before
the statements
his side
v. Von
knew
position,
simply
Missouri,
amounts
circumstance,
Black
consideration was
No case has been
nor is
partnership
answer,
amended
to consider
which he
tried,
transaction,
make statements
assume
fixed
testimony
the evidence of
inducement
have instruct
order to show
Uvalde
principle
issue, it is
the force and
Notes
so the suit on notes damages a for cause of action asserts a separate instituted a could defense, but a is not a This breach of contract. upon proper proof have recovered cross-action.” of, against appellant. grow out It did not up case, where sets it is in So part of, a which not notes on plea in reconvention a a cross-action as founded the suit was based. appellant’s cause defeat Fearhake, As 22 in Walker v. Tex. said part. in of action in or The decisions whole 61, App. Civ. S. W. 52 629: appel- not sustain the contention of cited do plea “Against up the matters in a in.re- lee. the time limitation run convention the hand, in case a On the other a in which Stoneum, filing plea. Fowler v. sought a defeat an action on defendant 490]; Am. Dec. Senter v. Whit- [62 against promissory ing by damages plea aker, a aris- But note a 89]. [2 Tex. 624 existing plea claim of set-off where the Court, Ney fraud, Supreme in out filing filed, of the suit suit was time the Rothe, held: 61 Tex. suspended the statute.” “Upon question in- of fraud the jury fraudulent concealment structed by the statute were diligence, they Whitaker, In herein the case of Senter v. prevent running sought damages cited, it was recover facts until the defendant rising ordinary to sell certain cotton until, by a failure 'discovered, the use of or defendant, pleaded by a have been discovered market which was him.” plea in re- held that it was the court approved years. That court. in two convention and barred provided knew the land be Stats., In this
[7] case it is Rev. article bought possession, may pleaded He was it. fore be counterclaim falsity plaintiff. pro- or against could have known of the claim purely Black. all of the vision has no reference to masters them, know of some of defensive, He did has view matters are but chart, damages, yet words, nor no claim In other he made any in their cter. offensive recognition rule of rescind sale for seems to be evinced desire recognized by years. it is the civil to reconvention as acts amounted than 1-Iis five more rep is a well-defined rule law. There order waiver only plead Bender; Kennedy a set-off it must arise resentations. transaction, heavy it must same out of the plain- improve- the claim of same character as payments he made MILLIKIN Tes.) BINDER v. bring peculiarly within facts the 24, Stat- this case Revised in article As stated tiff. utes Fairbanks, scope 101 Tex. of Ft. Smith : held that it was 102 S. W. a claim plaintiff’s cause “If the damages, found- unliquidated uncertain a claim of or limitation not run does covenant, the defend- a tort or breach ed ant pleaded aas de failure of consideration permitted off debt to set and, shall contract; plaintiff’s fense to where defendant suit on the the suit be plaintiff; due same, pleads demand, avoid defendant on a certain founded shall uncertain of covenant on unliquidated to set off not be liability, for a ance cross-action for to such but as a basis damages or breach on a tort founded damages, applies limitation plaintiff.” part of the cross-action. not have could law Under judgment to Black is damages offset to matter of used not before this court and will not be disturb- liquidat- on, one was notes sued because the ed ed, appellant but the But, unliquidated. as said the other reversed, judgment here Power, Egery Supreme Court in favor of rendered Tex. 501: notes, interest, attorney’s amount of his liquidated, although sus “And, a claim fees, and all costs of this and the lower liquidation, cannot be ceptible immediate * * * court; prayed set-off; compensation, his lien be foreclosed as pleaded yet out damages, arising for unascertained a claim for; nothing by take sub transaction the same cross-action. pleaded suit, in reconven ject tion.” Rehearing. On Motion for appellee’s claim for It follows
[8] unliquidated, damages, being not be grounds As one of the relied at- compensation or for in offset tack the contract necessarily notes, sustain appellee order to the it That that: plea reconvention. must be agree “asked defendant to sell plea pre only him one-half interest in the ranch on the he could was the price basis the defendant was ap- It is evident to the court. sent pellee contracting buy same, told the defendant to be one not intend to form a wanted partial failure of consideration be dispose ranch, or total handle and defendant ranch, and wanted to own one-half of the notes, cancel cause Dut represented its prof- the enormous judgment for balance on to obtain ranch, made out could be against appellant. The an over such John ship and sell and and such conduct the said required forming partner- law. R. swer verified Black succeeded