210 S.W. 605 | Tex. App. | 1919
This is a suit by H. E. Bowden and his wife, Flossie H. Bowden, brought in the district court of El-Paso county, Thirty-Eourth judicial district, against Alverta Waggoner to rescind a contract of sale and cancel deed made by her to Bowden and wife, and to cancel the notice executed by them for the unpaid part of the purchase money given therefor, and to recover the payments made and for the value of Improvements made by said Bowden and wife on the lots conveyed,’ for alleged fraudulent representations made by ' defendant and which induced plaintiffs to enter into said contract. The plaintiffs also sought an injunction against the State National Bank of El Paso, enjoining it from disposing of or parting with possession of the unpaid notes executed by plaintiffs, for which purpose the’ said bank was made a party defendant.
The defendant Waggoner answered by general denial, and allegations of knowledge having been acquired by plaintiff of the alleged fraud, and subsequent ratification or election to abide the contract. The defendant also filed a cross-action to recover on the unpaid notes given by plaintiffs and on those given by defendant Waggoner for certain personal property later sold to Bowden and wife, the payment of which was assumed by plaintiff Bowden and wife, as a part of said sale, and to foreclose the lien on the real estate and personal property involved in the deal. ,
The State National Bank answered by demurrer and general denial.
The case came on for trial September 25, 1918, before the court without a jury, and the court rendered judgment for defendant for $5,900 and interest, and on motion of plaintiffs filed findings of fact and conclusions of law; and plaintiffs excepted to the judgment and certain of the findings of fact-and conclusions of law and filed statement of fact and assignments of error, and has brought the case here on appeal.
The court findings of fact and conclusions of law are as follows:
(1) I find that the defendant Waggoner made representations as to her daily gross receipts from her business as alleged in plaintiffs’ petition.
(2) I find that said representations were false, in that her gross receipts during the month preceding the sale had not been more than half as much as she stated to plaintiffs they were.
(3) I find that said representations were made by defendant Waggoner knowingly.
(4) I find that said representations were material to the making of the contract by the plaintiffs, and that plaintiffs relied upon said representations as speaking the truth, and that the belief that the receipts from the daily sales were as large as was stated by the defendant Waggoner was a material inducement to the making of the purchase of the business, property, and location which the plaintiffs purchased.
(5) I find as a fact that the books introduced in evidence by the defendant correctly showed the business which she did up to and including February 24, 1918.
(6) I find as a fact that the plaintiffs, immediately after they took possession, had knowledge that said representations of defendant Wag-goner were untrue.
(8) X find that said Coontown Tablet was in possession of plaintiffs from the time they took possession of the store, but never came under their personal observation, and were never examined by them until about the middle of August, 1918.
(9) I find that if the plaintiff had undertaken to prosecute inquiry as to the facts concerning said fraud, they could, in the exercise of reasonable diligence, have discovered facts upon which to sustain a judicial decision.
(10) I find that the plaintiffs carried on the business, using the property purchased, made improvements thereon, and made the payments under the contract, for 4½ months, and took no steps to rescind the contract of sale until about August 16, 1918.
(11) I find that plaintiffs are in default of the payments overdue on said purchase as pleaded by defendant in her cross-action, and in the amount, principal, interest, and attorney’s fees as pleaded by defendant.
(12) That by the time this suit was filed a material change in the position of the parties had occurred, and it is impossible to place the parties in statu quo.
The fraudulent misrepresentations charged to have been made, and which induced appellant to enter into the trade, are that ap-pellee stated that her daily sales were not less than $25 per day, except Sundays, and that on the latter days they were from $100 to $150. Appellants testified that the sales began to run, immediately after taking charge of the business, from $5 to $10 per day on week days and $40 to $50 on Sundays, and business did not increase — taking their testimony — during all the time they ran it, over four months. So great is the difference between these receipts and those they allege ap-pellee represented she had received, as to conclusively show that it was impossible for the representation to have been true.
The second assignment charges error in the ninth finding, in that the evidence did not tend to prove a failure to make inquiry; since we have concluded that the evidence is sufficient to support the sixth finding, the ninth becomes immaterial.
| Finding no error in the record, the cause | is affirmed.
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