180 S.W. 940 | Tex. App. | 1915
From the trial court's findings of fact and conclusions of law it appears that he was of the opinion the note was wholly worthless, that the deed to appellant therefore was without a consideration, and on that ground granted to appellee the relief he sought. The finding that the note was worthless was based on evidence showing McGuire, its maker, to be insolvent, and the horse mortgaged to secure the note to be "locoed," and therefore practically valueless, and evidence showing, as the court thought, the security afforded by the cotton mortgaged to be worthless because of the fact that McGuire's landlord had a lien on the cotton for more than its value, which was entitled to priority over the lien of the mortgage. It is insisted that the testimony was not sufficient to support a finding, either that the horse was valueless, or that the security furnished by the mortgage on the cotton was of no value. In the view we take of the case it is not necessary to determine whether this contention should be sustained or not, for we are of opinion that it sufficiently appears from the record that if appellee was not entitled to the relief given to him on the ground assigned by the court, he was entitled to it on the ground of fraud practiced on him, whereby he was induced to make the conveyance of the land. If the judgment is right on the case made by the pleadings and evidence, the fact that the trial court may have based it on the wrong ground is not a reason why it should be reversed. Green v. Cross,
The trial court found that the disease from which the horse suffered constituted a latent defect. He further found that appellant knew the condition of the horse. We think it sufficiently appears from the record that appellee did not know of the defect, and that appellant knew he did not know of it. Under such circumstances we think it should be held that it was appellant's duty to advise appellee that the horse was a "locoed" one. That the horse suffered from an incurable (as a veterinary doctor testified) disease which rendered him practically valueless certainly was a fact material to appellee in determining whether he should accept the note in payment for the land or not; for the security furnished by the mortgage for the payment of the note necessarily was diminished to the extent that the disease affected the value of the horse. It further appearing without dispute in the testimony that appellee would not have accepted the note for the land had he known that the security therefor, so far as it depended upon the horse, was practically valueless, it seems to us a case was presented which entitled appellee to the relief he obtained, notwithstanding it may be true that the note was not so entirely valueless as to justify judgment in his favor on the ground that there was no consideration at all for the deed. The rule has been stated to be that each party to a contract —
"is bound in every case to communicate to the other his knowledge of material facts, provided he knows the other to be ignorant of them and they be not open and naked or equally within the reach of his observation." 14 A. E. Ency. Law, p. 73.
And by another writer as follows:
"If a party conceals a fact that is material to the transaction, knowing that the other party is acting on the assumption that no such fact exist, the concealment is as much a fraud as if the existence of the fact were expressly denied or the reverse of it expressly stated." 20 Cyc. pp. 16, 17. And see Smith on Fraud, §§ 9, 10, 11; Rice v. Silverston,
*942The judgment is affirmed.