300 S.W. 240 | Tex. App. | 1927
The members of this court are not agreed as to whether the contract was wholly executory or not. The majority think it was not, while the writer thinks it was because appellant, having been induced by fraud practiced on him to enter into it, was not bound to perform it, and because the check he deposited in escrow was not payable until "he owed it." Thomas v. Birch,
While recognizing the rule giving a person induced to enter into a contract by fraud practiced on him a choice of remedies (Blythe v. Speake,
"The question of waiver, however, is largely one of intent. Hence acts done in affirmance of the contract can amount to a waiver of the fraud only where they are done with full knowledge of the fraud and of all material facts, and with the intention clearly manifested of biding by the contract and waiving all right to recover for the deception. Acts which, although in affirmance of the contract, do not indicate any intention to waive the fraud, cannot be held to operate as a waiver."
In the instant case the testimony that appellant notified appellees, at the time or before he affirmed the contract and performed his undertaking under it, that he would seek a recovery against them for the fraud practiced upon him was undisputed. That being true, certainly the court had no right to say it appeared, as a matter of law, that when appellant affirmed the contract he intended thereby to waive the right he had to sue for damages for such fraud.
In the Wolff Case the Court of Civil Appeals said:
"It seems to be well settled in this state that, where one is induced by fraud and deceit to enter into an executory contract, he may, after discovering the fraud and deceit of the other party, go on and perform the contract and hold the wrongdoer liable for such damages as flow from the fraud and deceit"
Appellees cite Loper v. Robinson,
What has been said was with reference to contentions urged here by both of the appellees. In addition to these contentions, appellee Dwyer insists it appeared he had nothing whatever to do with the making of the representations in question and did not appear that Thrower, in making them, acted for him either as his partner or his agent, and that the action of the trial court in instructing the jury as he did therefore was not error as to him. We do not agree it appeared that Thrower was neither Dwyer's partner nor agent in the transaction. Appellant, as a witness, testified to admissions made to him by Dwyer, which would have warranted a finding that he and Thrower were partners in *242 the transaction, and as such shared equally in profits arising therefrom.
Appellee Thrower filed cross-assignments of error and insisted the trial court erred in admitting, over his objection, parol testimony to prove that he made the representations in question. As we understand the contention, it is not that the testimony was inadmissible if the suit should be treated solely as one for damages resulting to appellant from his reliance on the truth of the alleged false representations but that it was inadmissible if the suit should be treated as also one on the contract for damages for violating the undertaking to lease the lots.
We agree with the trial court that the allegations in appellant's petition showed the suit to be one solely for damages for the fraud alleged and that the testimony objected to therefore was admissible.
The judgment will be reversed and the cause will be remanded to the court below for a new trial.