12 S.W.2d 1078 | Tex. App. | 1929
In this case the trial court sustained a demurrer to appellant's petition, and dismissed their suit, holding that the petition shows on its face that the alleged cause of action accrued more than two years from the date of the filing of plaintiff's first amended original petition.
Practically the only question in its final analysis presented here is whether plaintiffs' amended petition set up a new or different cause of action from the cause of action pleaded in their original petition.
On the 17th day of June, 1925, plaintiffs, H. W. Cochran and wife, Eva Cochran, filed their suit in the district court of Tarrant county, and after stating that they are complaining of John W. Carruth, and after stating his residence, plaintiffs allege the following: That on or about April, 1918, John Carruth represented to these plaintiffs, for the purpose of having them purchase $1,850 worth of stock in the Hogg Creek Carruth Oil Company, that said stock was worth more than 100 cents par, and that at the time he sold same he represented to these plaintiffs that they had production and were making large and fabulous sums upon said Hogg Creek Carruth proposition.
Plaintiffs allege: That by reason of said representation, and by reason of the false and fraudulent pretexes on the part of said John W. Carruth, and his agents, these plaintiffs were thereby induced to purchase $1,850 worth of said Hogg Creek Carruth stock at the price above stated. That on and after the purchase of said stock, said Hogg Creek Carruth Oil Company merged with the Pilgrim Gas Oil Company, and the stockholders holding said Hogg Creek Carruth stock were forced to pay an additional 25 per cent. by reason of said merger; that these plaintiffs did pay the 25 per cent. of the $1,850, which was $462.50, aggregating $2,312.50, which sum these plaintiffs have paid to the said John W. Carruth and his agents and in return have received nothing.
Plaintiffs allege that the said John W. Carruth has property in the state of Texas and in the state of New Mexico sufficient to satisfy said indebtedness, and plaintiffs pray for judgment as will be hereinafter indicated.
Wherefore, premises considered, plaintiffs pray that defendant be cited to appear and answer this petition, and upon final hearing of this cause that they have judgment for the sum of $1,850 against the Hogg Creek Carruth Oil Company and $462.50 against the Pilgrim Gas Oil Company, aggregating the sum of $2,312.50, for costs of suit and general and special relief as to the court may seem proper and right. Signed: Will S. Payne, Attorney for plaintiffs.
On May 17, 1927, plaintiffs filed their first amended original petition, reciting that it was in lieu of their original petition, and after stating that plaintiffs were complaining of John W. Carruth, and the residence of the parties, alleged, in substance, the following:
That in 1922, and for a long time prior and subsequent thereto, defendant was engaged in handling and selling oil stock certificates and owned and controlled interests in various oil companies and concerns in this state. That in 1922, plaintiffs were induced by defendant to purchase from him certain oil stock in what was known as Hogg Creek Carruth Oil Company, and in the Pilgrim Oil Gas Company, and paid defendant the total sum of $2,312.50, which said sums were paid at various intervals beginning with January 4, 1922, covering a period of time from said date until on or about August 1, 1922; said sum being paid by checks and made payable to the party or company as directed by defendant, but principally to the Hogg Creek Carruth Oil Company.
That the stock certificates were received by plaintiffs for which said sums of money were paid, and all of which said sums were paid to said John W. Carruth upon the strength of and by reason of the representations made by said John W. Carruth to plaintiffs, and that the said John W. Carruth represented to plaintiffs that said Hogg Creek Carruth Oil *1080 Company was of great value, and was a going concern, and that the said Hogg Creek Carruth Oil Company owned and was operating a great number of producing wells from which the stockholders in said company were obtaining large dividends, and that the persons who had made early purchases in said company of the stock thereof had realized and received several hundred per cent. on their investment, and that said company's holdings were situated and located in Eastland county, Tex., and constituted a part of the Desdemona Fields in said county, and that the possessions by way of leases and leaseholds of said Hogg Creek Carruth Oil Company were very extensive, and that the wells of said company were producing large quantities of oil at the time of said purchase, as herein elsewhere pleaded, and that the plaintiffs, if they would purchase said stock in said company, would receive large dividends from their investment. That the Hogg Creek Carruth Oil Company was the same that had theretofore been operated by Governor Hogg, and was in fact the old Hogg Oil Company, but that owing to the fact that there was a creek that ran in and about said lands in Eastland county, Tex., the lands were so much better known as Hogg Creek they had renamed the Hogg Oil Company the Hogg Creek Carruth Oil Company. And all of which representations induced these plaintiffs to spend their money, the amounts herein elsewhere set out, all of which representations defendant had full knowledge, except for which said representations plaintiffs would not have purchased said stock.
That the representations so made by the defendant to plaintiffs were false and untrue at the time they were made, and said stock was worthless and of no value whatsoever, and the defendant knew at the time he made them they were false and untrue, and knew that plaintiffs did not know they were untrue, and knew plaintiffs believed said statements and representations were true. That said Hogg Creek Carruth Oil Company was not a going concern, and the stock sold plaintiffs was of no value. That said company did not own and operate a great number of producing oil wells in which the stockholders of said company were obtaining large dividends, or had theretofore received such dividends. (Without quoting the verbiage of the petition, it proceeds at length to negative as untrue the above-alleged statements and representations and others not copied here.) The petition then alleges that the representations induced plaintiffs to buy the worthless stock; that plaintiffs made no investigation as to the truth of the statements, but relied wholly on said representations, and did not know they were false until along about October, 1923.
Plaintiffs further allege: That said false, fraudulent, and untrue representations were made for the purpose of inducing plaintiffs to buy the said stock of the said two companies, and for the purpose of cheating, swindling, and defrauding plaintiffs out of their money, and did cheat, swindle, and defraud plaintiffs out of their said money, as stated.
That the representations as stated were made about the first of January until and about the first of August, 1922.
That the said two companies merged and the stockholders of the Hogg Creek Carruth Oil Gas Company were requested by defendant to exchange their stock for stock in the Pilgrim Oil Gas Company, and that plaintiffs did so, and paid 25 per cent. of their investment in the Hogg Creek Carruth Oil Company for an equal number of shares of stock in the Pilgrim Oil Gas Company, on the representation that the last-named company had a great number of producing wells in the Burk Burnett Fields, in Oklahoma, and in other portions of the state, and that their investment would be greatly increased by such exchange of stock. That plaintiffs were led to believe that such statements and representations were true, but same were not true, and known by defendant to be not true, but so relying upon the truth of the statements plaintiffs made the exchange of said stocks and paid defendant the additional sum of $462.50.
That the representations of defendant as to the Pilgrim Oil Gas Company were made for the purpose of cheating, defrauding, and swindling plaintiffs out of said $462.50, as also out of said $1,850.00, to plaintiffs' damage $2,312.50, and interest from August 1, 1922.
It is alleged that defendant left the state and was without the state for a period of more than one year immediately following the time plaintiffs learned of said false and fraudulent matters complained of; that plaintiffs have made demands upon defendant to return to them their money, but that defendant has refused to do so. Plaintiffs pray that they have judgment against defendant for said sum of $2,312.50, with interest and attorney fee, for relief general and special.
The only pleading of the defendant that we need to note is his special exception pointing out that the cause of action as pleaded by the amended petition shows to be barred by the Statute of Limitation of Two Years (R.S. 1925, art. 5526).
The court in its judgment recites that the court is of the opinion that said cause of action is barred by the Statute of Limitation of Two Years, and that the amended petition sets up a new and different cause of action from the cause set out in the original opinion, and that same shows on its face that said cause accrued more than two years from the date of the filing of the original petition; the court dismissed the cause of action, to which plaintiffs excepted and gave notice of appeal.
Plaintiffs filed motions to set aside the judgment and grant a new trial, and to *1081 permit plaintiffs to further amend their original petition, which motions the court overruled, to which rulings plaintiffs duly excepted and gave notice of appeal.
It might properly be said here, under the American Salt Co. v. Heidenheimer et al.,
In Phœnix Lumber Co. v. Houston Water Works,
As said in Baker v. Ry. Co. (Tex.Civ.App.)
In Code pleading, as in this state, a system of fact pleading, a plaintiff, in suing in tort, may properly set out his contract, as constituting the underlying fact, and the plaintiff does not thereby necessarily commit himself to the theory that his action is for breach of contract. Whether the action is in tort or for breach of contract must, in its final analysis, be determined by the structure of the pleading itself. 26 R.C.L. p. 778, § 30; Flint Walling Mfg. Co. v. Beckett,
The rule requires only that the pleadings should be substantially alike, not exactly so. And if the pleadings were to be only substantially alike it would necessarily follow that the same would be true of the proof in support of the facts alleged. Fuller v. El Paso Times Co. (Tex.Com.App.) 236 S.W. 455, 461. In the last-cited case it was held that where each pleading declared upon the same transactions, and the only differences, if any, relate to the terms and effect of the contract, it is well settled that such differences do not constitute the amended pleading a new cause of action, and referred to a number of our Texas cases so holding, which we have reviewed, but which references we omit stating. In Young v. Bank (Tex.Civ.App.)
We need not review other propositions presented.
The case is reversed and remanded for a new trial.