*1 speed stopping or reduction sudden any signal, art. giving was done without Code; 6701d, 68(c), (K), art. Penal §§ Transport Co. v. 69, 70; E. D. A. & J. 693, man Rusin, Tex.Civ.App., S.W.2d v. conditionally Dillard granted,
damus Smith, con S.W.2d 146 Tex. Transport & E. D. opinion,
forming A. J. Rusin, S.W.2d v.Co. operated un .being
and that the truck
6701d,
equipped
stop light, art.
§§
McClendon,
114(a),
(1);
124(a)
Jackson
577, 187 S.W.2d
Evans
Tex.Civ.App.,
Jeffrey, driver,
Appellants’ well as the truck
physical photographs offered in facts
evidence, though dispute fruitful interpretation, provided additional required grounds support of
facts in proximate cause. negligence as well as adequate pleadings, evi Based on there of a crime show the commission
dence to trespass under the venue statute. Cumba Lines, Tex.Civ.App., 229 Bus
v. Union Buster, Wash. v. Tex.Civ. 241; Sproles Cope App., 226 S.W.2d
land, Tex.Civ.App.,
BRIGGS al.
No. 12209. Appeals of of Civil Texas.
Court San Antonio.
Jan.
Rehearing Denied Feb. *2 Strickland, Wilkins, Mills, Hall & Mis-
sion, appellant. Myrick, Harlingen, appel- C. John lees. NORVELL, Justice. Briggs, E. below, H. the defendant has
appealed
from a
rendered on a
preter.
prior
Some
to March
royalty deed ex-
weeks
cancelling a
jury verdict
1947,Briggs
appellees about
Rod-
talked
appellees,
and Clara
Castulo
ecuted
tract
money judg-
purchasing
ten-acre
owned
them a
riguez,
awarding
Pate,
adjoined
Robin
the Cravens
actual dam-
against appellant for $300
ment
ages
*3
doing
It
that
damages.
may
tract.
in so
inferred
$1,000 exemplary
and
although
agent,
as
Briggs
acting
Pate’s
against
here
Appellant
his
centers
attack
agreement
he
he testified that
had
judgment awarding
that
part
purchase
ten
whereby
was to
the Pate
he
By
four
against
him.
first
agent
appellees
acres
for
and
as
points,
the evidence
appellant
that
contends
men-
royalty
receive
deed hereinafter
law,
appellees’
shows,
that
as a matter
Briggs,
for a
tioned
and
commission.
two-
claim for
is barred
ap-
apparently
authority,
with
told
Pate’s
year
Article
statute
limitations.
pellees
buy
by pay-
that
the land
could
defense of
Civil
The
Vernon’s
Statutes.
assuming
ing
and
taxes due
cash
$500
aby
injected
into
case
limitation
Appellees
paid
agreed
thereon.
to this and
relating
trial
thereto
amendment.
Issues
to Briggs
over
as earnest
and
$300
jury by
the trial
were
submitted
Briggs’ receipt
Appel-
received
therefor.
although
judge
some contention is
-and
thereupon
land,
lees
went on
com-
appellant’s
pleadings
brief
made
that
menced the
of brush
clearing
therefrom
appellees
insufficient
were
certain
so that it could be farmed. Some weeks
particulars,
any
appear
not
that
does
thereafter,
10, 1947, Briggs
about March
objection was made to the
submission
appellees that
ready
told
Pate was
to close
relating to
the issues
limitation on the
wanting
the deal but that
instead
$500
any
grounds
pleadings
that
were in
$800,
for
land he now demanded
that
way deficient.
is,
addition
theretofore
$500
$300
money.
Rodriguez
position
Appellant’s
earnest
Castulo
below and his
represented
position
Briggs
testified that
him
primary
here is that the evidence
conclusively
“that Mr. Robin Pate had said
I
as a matter of law
that
had
shows
land,
pay
cash for
that
appellees’
ap
that
action was barred.
It
n somebody
* * *
buy
else
it.
Mr.
pears
alleged
repre
that
fraudulent
Briggs told
ap
me that Robin Pate wanted the
years
made two
sentations were
béfore
five hundred dollars.” This
addi-
original petition
was in
pellant’s
was filed. The
already paid. Rodriguez
tion to the
that
clearly
$300
sufficient
show
evidence is
he
testified that
had lots of confidence in
actually
appellees
discover
did
Briggs
said;
Mr.
and believed what he
shortly
the suit was
until
before
fraud
n
that he believed
had
Pate
demanded
presented
question
here then is
filed. The
it,
appellees
pay
extra
and that if
didn’t
failed to
he
or not the
use
whether
property
diligence to discover the fraud.
reasonable
would be sold to someone else
Tex.Sup.,
Steele,
put
51á expanded argu- point is suspicious This somewhat become party to injured recovery of consummated, ment so as to assert right the deal is after assumpsit count although new $300 no .investigation, start an received, exem- had and and that knowledge. On facts have come plary damages awarded for cannot be is con oases it hand, in of our other some implied breach of a contract. in re justified party is sidered knowledge he has inactive until maining general is a rule upon in put him which would of some fact can not be based representations were quiry whether upon mere rule breach of contract. This [Tex.Civ.App.], v. Ebeling false. Coleman however, should, be restricted to 199-204; Wright, Isaacks 138 S.W. and not fictitious There contracts ones. 970; Smalley Tex.Civ.App. 110 S.W. A a distinction a case between in which 166 S.W. Each [Tex.Civ.App.], Vogt agrees so, pay B then fails do facts, upon its own case decided must be point in which A gun at the of a party not be and the conduct must B give takes from and then fails to n very judged by cautious and sus what promise Any holdup back. that a man *5 picious done person the would under money makes to return to his victim is a circumstances, by person but what same pure fiction and simple, and it bit in is a ordinary prudence, of situated was as speak congruous to of seeking one a return plaintiff, would have done.” money of illegally thus taken from him as Cecil, Tex. Clopton v. case of having “waived The recent the toft and in sued as- by 251, this decided sumpsit.” S.W.2d 1 McDonald, 234 Civ.App., Texas Prac Civil contrary holds tice, 165. on October Court Isa also: See contention. appellant’s to (whose work Corbin L. Arthur Professor Tex.Civ.App. 110 50 Wright, acks v. published), writ- being on is now Contracts Tex.Civ.App., Vogt, Smalley v. S.W. 1910, had Yale in ing for the Law Journal Tex.Civ.App., Burns, 1; Stone v. 166 S.W. say: following to the Thompson, v. 1121; Luginbyhl 200 S.W. thought given the matter “The least McCord Tex.Civ.App., 11 S.W.2d that where one is al- will convince one 885. Tex.Civ.App., 200 Bailey, in to waive a tort and sue as- lowed obligation the is sumpsit, the defendant of does that the evidence hold We really up- contractual. It is not based law, appellees’ show, matter of as a thing agreement or The on consent. chief by barred limitation. action cause of promissory obliga- it in common with a has under the facts limitation question of by can that it be enforced an action tion is Appel jury. for the was one of case stereotype assumpsit. called form inclusive, are Nos. 1 to points lant’s thought not even least But sometimes overruled. result is unreason- given, has been point, appellant contends By fifth his * * * conflict, logic, bad and bad law. able damages can- of award conclusion, appear would “In ac- for the reason no not be sustained propriety to the doubt as of grave there is jury. damages awarded tual waiver the whole doctrine of of tort and damages is of actual based The award assumpsit, doubt which been suit in has 4 Special Issues Nos. answers * * * many judges. expressed by found 5, whereby jurisdictions of over sum “In where old forms of paid had totally abolished, Pate have been demanded action there amount and above nothing left of payment was induced be whole doc- such and that representations. excepting a trine few historical echoes.” fraudulent of means Law Yale Journal position that appellant’s be It seems applicable, option Wherever allowed because are no actual contract or tort paid proceed in seems recovery to be for sum of measure affording purpose plaintiff was a certain. sum appellees and out pur- damages remedy involved, see, and not for more suitable is v. Keith Greene ley, 8 pose rights. There must Cir., 86 F.2d diminishing 238.) As above indi cated, necessarily of election be an element this is not a case of election where one rem- present. hut fraud, remedies If there be a vendee is suing vendor edy damages, may one measure rescind the contract or affirm agreement there can no election. damages. and sue for An ac tion will against lie purporting act And even in of breach of case agent express exemplary damages may contracts paid out wrong because of a for which the complained wrong recovered when agent personally independently re constitutes both contract and breach sponsible. Loma Development Vista Co. v. accompanied by fraud, op a tort malice or Johnson, 142 686, 691, Tex. .2d S.W pression. Ry. Gulf & Coast Santa Fe Appellees paid ap over Levy, Co. Am.Rep. pellant upon representation the fraudulent (wherein tendency said that the Pate, vendor, price had raised his the decisions courts where technical and that it, did not meet form of action have been discarded is to land would be sold others and apply the rule for same the measure of put lose what they had into the deal. in cases based contract The measure of their actual damages nec are attended with circumstances of essarily out applied aggravation, actions found representa as a result of these fraudulent solely Annotations, tort). ed A.L.R. tions. No occasion for an election was Giles, 1352; Sheps presented. *6 348, cited; S.W. and authorities therein 246, Damages, 13 137. By an § early It pointed out Tex.Jur. alogy, damages exemplary also Supreme plain Court of this State that a when the act rise to a giving allowed ficti right tiff does not exemplary waive his implied a tious contract amounts to wilful damages suing for the return of the allowing exemplary The tort. rule dam parted consideration he had with because ages, where it shown that a is defendant of fraud or duress. In Chapman, v. Oliver wilfully, maliciously fraudulently, acted or 400, 15 Tex. Mr. pointed Wheeler Justice application. is of general one is rec object out that “the main of the suit was ognized by the common and is de law conveyances to cancel plain which the pendent upon 236, statute. 13 tiff had made and to recover back prop Tex.Jur. Damages, 129. Its is effectiveness in no erty,” § yet it was held that as fraud was dependent way upon common or law forms shown cancellation, as basis for the ex of classes actions which have never been emplary damages could be recovered. Texas, recognized 2 used in Gammel’s Roder, In Graham v. 5 Tex. the Su- 262; Hendrick, Walcott v. Laws 6 Tex. preme Court held that plaintiff where 610, Actions, it § Tex.Jur. fraudulently certificate, sold a land inquire seems somewhat academic to now plaintiff was entitled recover as actual present or not the as to whether action damages agreed value wagon of a de- been classified as one in as- livered to settle given the note for the trespass of sumpsit or an action on the case certificate, and that in considering wheth- trial judge law. The common at er or not the jurisdic- district court had as a tort parties treated this action. below case, of tion the pleadings relating to that the elements of fraud jury found The a recovery exemplary damages must present were and should malice effec be considered. is This a holding direct appellant’s contention. Ste tively answer in fraud cases when the return of County Co., H. Burt & v. C. phens Tex.Civ. paid sought, is consideration exemplary (For a App., 19 S.W.2d discussion of damages may be recovered. “trespass law action of common on Stokes, Hubby applied to a case wherein v. the re In Tex. ap- case” as defendant, paid out and that the exemplary pears of through rep- false turn actual dam- “their Negro were entitled to slave. recover reservations, worthless a sold damages.” ages exemplary as well damages amounted The paid. The price purchase amount of the Gaffney, of Bush The case v. involving a the case as parties treated Tex.Civ.App., this plaintiff filed warranty and breach of Court, point there not in It was is here. damages. The exemplary a of remittitur despite a held that the fact that Texas “the said Supreme Court may grant equitable legal both court ground on distinct be_ might maintained relief, case, yet present as was done in the fact, independently fraud manifest of plaintiff proceed where elected “plain- warranty,” and that supposed equity, exemplary he could not recover very unnecessarily remitted counsel tiff’s damages. holding is based found portion of verdict a considerable equity view court of a court exemplary respecting the instruction under recovery puni conscience and that York, also, Hall v. damages.” See repugnant equitable tive Organ Co. v. Piano & French Jesse principles. In the case before cannot us, Gibbon, Tex.Civ.App., S.W. be contended suing equity, overpayment insofar Zapp, Mossop Tex.Civ.App., 189 v. concerned. Even the 979, 981, law as- the re- old common Court allowed S.W. sumpsit count had and received $1,500 paid by plain- covery to defendant equitable remedy. is not an There is of fraud and -also allowed as the result tiff clear admitted Bush Court, between exemplary This conflict damages. Gaffney Supreme Swearingen, case of through Mr. Court speaking' Justice (de- that “Under Chapman, said such circumstances Oliver v. Tex. recovery exemplary intent) malicious the question liberate fraud and suit, Tex.Civ.App., recovery authorizes a law Texas now rescission damages.” far as we have been 764. So 84 S.W.2d find, Supreme never Court has able Cottage Organ In Western Piano & Co. and, approval, Gaffney Bush cited Anderson, S.W. ulti may how conflict regardless of by plaintiff of the amount *7 resolved, holding we the mately be think rep- defendant as a result of fraudulent to Chapman authority the v. for of Oliver and resentations allowed described as recovery of the the con proposition that damages,” together a recovery “actual paid of fraud consti as a sideration result $1,000 exemplary damages.' of will damages, serve as a and tutes actual Ry. Co. Fe v. & Santa Coast Gulf In recovery exemplary dam the of basis for cited, Judge 542, heretofore Levy, Tex. 59 contrary to the holds ages. case The action forms of points out that Stayton by appellant here. proposition the asserted that, Texas, in and abolished been opinion, the refusal of an our In have, constituting regard to the facts “We exemplary damages in this case of award the and 'afford complaint, cause of the give to to an outmoded would effect (cid:127) ample redress and re- plaintiff most recognized in Texas. form of action never justify.” will the facts which lief assumpsit count" of had and The Walton, Tex.Civ.App., v. In Hawthorne large to a extent based received 399, affirmed an this 397, Court 30 S.W.2d promise by recognized in a fictitious law damages. It $10,000 exemplary rémedy person award of give a to a fraudu order to support- damages money. appears of his lently deprived that Whitcomb by 245, the sum 175, were measured Brant, 100 A. award 90 L.R.A. ing this v. N.J.L. pur- on the 1917D, the Waltons $6,050 paid This fictitious device invented of early judges get involved. common law Chief by the land at of price chase opinion should not at this wrongdoer for the a late date writing the Fly, Justice protect wrongdoer. deprived as a shield to appellees “were used Court, held point Appellant’s fifth is overruled. and money” by fraud deceit of
517
land,
other
points,
thirty acres of
and the
ing
seventh
By
his sixth
assumpsit
of
nature
for the
court’s submis
appellant
asserts
price
over-payment
purchase
exemplary
on
the issue
sion of
land in
sum
evi
weight of the
charge upon
$300.
was a
authority relied
is South
dence. The
roy-
The cause of
action
set aside the
Ashby, Tex.Civ.
Greyhound
land
Lines
alty deed is
suit
a written in-
to cancel
446,
445,
wherein it was
App., 80 S.W.2d
governed by
four-year
strument 'and is
special
in a
is
improper
set forth
held
5527,
statute'of
limitations. Art.
Vernon’s
maxi
relating to actual
sue
Ann. Civ.Stats.
suit
filed
The
within
recovery prayed for in
mum amount of
four-year period
and was therefore
employed was:
petition.
question
The
brought.
timely
jury
ap-
The
found that
money,
excess
“What sum
of pellees
sign
were induced to
the instrument
cash,
ade
$2,000.00,
paid
if
now in
representations
false
and that
nev-
**
plaintiff
compensate quately
appeared
in fact
er
before
notary public
acknowledged
such instrument. Clear-
point
is not in
authority
The cited
ly under
such findings
were entitled
in
the court
case
present
here.
to-have this instrument set aside and can-
exemplary dam
if
jury
structed
appellant
celled and
does not here con-
be a
all,
at
there
allowed
ages were
tend otherwise.
agree
I
part
so allowed
the amount
ratio
reasonable
the royalty
cancels
Spe
referred
amount
deed should be affirmed.
undisputed that
It is
cial
No. 5.
Issue
money recov
were entitled
The second
being
cause of action
ery,
should be $300.
the amount
thereof
assumpsit
nature
By
Special Issues Nos.
their answers
governed
received is
two-year
appellees had
jury
5, the
found
statute of
5526,
limitations. Art.
Vernon’s
fraudu
because
not brought
Ann.Civ.Stats.
within
trial
representations
The
lent
them.
period
and was therefore barred.
not,
either
wording of
court did
736,'
731,
p.
p.
3;
§
§
Tex.Jur.
Special
No.
Special
5 or
Issue
Issue No.
p.
42;
Johnson,
§
Tex.Jur.
Johnson
instruction,
explanatory
suggest
with its
Tex.Civ.App.,
Anders
S.W.
find that
had sus
Tex.Com.App.,
Johnson,
S.W.
damages.
tained
actual or
either
Mitchell,
Mitchell Greer Co. v.
Tex.Civ.
charge
weight
was not on
App.,
690; Causeway
Inv.
S.W.
Co. v.
explana
contrary,
evidence. On the
Nass,
112 S.
tory
one, appro
proper
instruction was
affirmed,
W.2d
84-S.W.
*8
applicable
priately
entirely
to
worded
571;
Guaranty
2d
United
&
Fidelity
States
case.
facts of this
In effect the
Bank,
Co.
First Nat.
93
correctly charged
were
of
amount
562; Settegast
County,
S.W.2d
v. Harris
reasonably
damages should be
Tex.Civ.App.,
Brill, Tex.Civ.App., 234 S.W.2d have consti 68, to minerals. If this would not have p. 39. order § Tex.Jur. appel- fraud, of would discovery from fraud tuted a injury resulting shown discovery the value of facts as required to have been such show lees be would person ordinary purchased, and that as would of have caused of the ten acres prudence they investigation induced to make an a result such of fraud worth. investigation such have to the the ten acres were would led to more than pay ap- discovery of Briley Tex.Civ.App., 13 S.W.2d the fraud. When Hay, pellees read, be did have their deed im of would measure 997. The mediately they paid led the discovery what of the fraud. difference between p. duty purchaser 20 is the the ten acres. of read the the value of Tex.Jur. 190, 146, p. acquires 134. which deed he title to land. 97;' 20 § § Tex.Jur. appellees The fact that Eng did not read go this Appellees did not see into fit to lish or they great had confidence simply brought a suit for the matter but appellant, they represented whom testified they overpayment. This of represent the seller and not did them though they had do even were entitled to would justify not their negligence not bargain. Ap- of their profit made out having their deed read. Carrillo v. Car permitted unjust- pellant will rillo, Tex.Civ.App., 88; 289 S.W. Kuhl expense appellees, ly at enriched Baker, 630; man v. Sherman v. they have suffered regardless whether Sipper, Tex. damages or not. This i.s any fraud March, A.L.R. Powell v. Tex. Civ. a suit principle very App., 936. 169 S.W. p. is based. 4 and received had Am.Jur. p. 2. Furthermore, at the § time § knew Tex.Jur. overpayment made an- money of obtains person "Where a purchased had the ten acres for a cash extortion, oppression by compulsion, other consideration of Pate, Briggs will received fraud an action or any right one else had no to demand p. § it.” lie to recover Am.Jur. overpayment them an This is $300. tort but not one a suit Such Iby illustrated testimony. Appellee their return contract implied upon an based Rodriguez Castulo subject on testified this C.J\S., money. Limitations Ac- as follows: p. 936, tions, p. § § 1887 C.J. Well, 9th, “Q. when on or about March record shows This you place he your he came and told out $3,250 for the of about total consideration you ready close the deal and told it for the sold land and thirty acres pay you five have to hundred another This, doubt, $12,000. no sum handsome dollars, say requiring who did he base they decided is the reason five dollars? Mr. hundred A. told mon- sue for simply but upon fraud suit me that Robin Pate had him that he told ey received. had and would have hundred dollars five imagi any However, stretch more the land. not to be one said nation, suit could be *9 “Q. you Did believe that? A. I one based but money had and received thought it was true. by barred it would be upon fraud, still “Q. you If had Briggs contracted with will It of limitations. two-year statute buy to it for five hundred dollars and tax- payment that after in mind borne es, why you pay eight did hundred dollars nothing appellant did further to the $300 Well, A. and the taxes? for the rea- fraud, to but mailed conceal the already I grubbed son that the land and they discover which a deed pay if didn’t I I to going they had read fraud, if or had ed it everything.” lose read, because the deed recited cash Appellee Rodriguez Clara testified as consideration fol- $500 “Q. Well, grantor you disclosed lows : what did further fact think about you thus eight his when avoid a do not hundred dollars lawsuit. Such facts asking present five -hundred agreed pay justify to case that will the recov- only had knew, we had Yes, ery but of exemplary damages dollar? we in more than A. up do three we didn’t overpayment the land all cleaned times amount of the they a whole lot which knowingly misrep- to going that we were lose made. The’ resentation here going more.” related to who was to overpayment, receive the -and did not re- paying Appellees. they were knew late to value Appellees of the land. require right anybody to more than had full well the land, knew amount its them, to so in order do but decided - value and what- they were for it. paying prevent The fact greater loss. only thing they did know was. Pate Briggs represented appellees that Briggs was going keep overpayment overpayment was wanted them to make and not turn it over to Pate. matter. incidental collateral my opinion C.J.'p. 936, C.J., p. Note In 37 72. should § “ * * * reformed so is stated: eliminate therefrom the § recovery of the apply overpayment the statute does not where no relief -and the $1,000 for exemplary any -against damages, defendant kind asked and as'thus reformed the judgment also, C.J.S., because fraud.” See should be áffirmed. Actions, 91. See also Limitations § Boyer Barrows, 757, 138 166 Cal. P. Obermeyer Kirshner, Mo.App. Byrd Rautman, 414, A.
Md. 1099.
Appellees’ they knowing at time made payment they
the cash making were overpayment an which neither nor BOUCHER et al. v. WALLIS et al. them, right Pate had a demand No. 2842. knowledge fraud, or was at least Appeals Court of Civil knowledge such of Texas. have caused them Eastland. make an investigation which would have Jan. discovery Appellees led to a of the fraud. having years than two waited more Rehearing Denied Feb. overpayment, they recover an knew overpayment at the time made it, two-year were barred statute of 5526, supra. limitation. Art. follows
that the claim of the over- barred,
payment being any claim for ex-
emplary based thereon -also
barred the same statute.
Furthermore, appellees having waived having
the fraud and sued for received, which is a ex suit contractu delicto,
and not were not ex entitled exemplary damages.
recover There is no injured
showing
alleged fraud were induced to
pay worth; more for the land than was contrary appears perhaps
on the very bargain. made a nice They made overpayment knowingly, apparently be- buy peace desired to
cause