215 S.W. 955 | Tex. Comm'n App. | 1919
The defendants in error sued Foster and McCarthy to recover damages for false representations made in the exchange of lands. It was alleged in the petition that plaintiffs conveyed cértain lots in the city •of El Paso, Tex., to defendants, in exchange for a. tract of land, and other property not necessary to describe, situated in Dona Ana ■county, New Mexico; that defendants represented to plaintiffs that they had perfect title to the tract of land conveyed, and that it contained 151. acres; that in truth the defendants had no title to 17.38 acres of the land, and, in addition, there was a shortage in acreage of 32.11 acres; that the false representations made by defendants as to the title and acreage of the land were fraudulently made for the purpose of inducing plaintiffs to enter into the contract of exchange, and that they would not ha^e entered into the contract but for said representations. It was further alleged that in making the exchange of properties, the parties agreed on the respective values thereof; and that by reason of the shortage in acreage of 32.11 acres and the failure of title to 17.38 acres, the difference between the value of the land and other property received and that given in exchange, on the basis of the agreed value, was $5,100. Plaintiffs sought a recovery of that amount as damages, or in the alternative such sum as the evidence might show would compensate them for the loss sustained. Defendants denied the material allegations in the petition. The trial before a jury resulted in a judgment in favor of plaintiffs, which was affirmed by the Court of Civil Appeals. 181 S. W. 520.
The case was submitted, to the jury on special issues. -The issue as to the value of the property given in exchange by the plaintiffs was properly submitted and found by the jury, but no issue was submitted, and no finding made by the jury as to the value of the property received. Instead the court directed the jury, in arriving at the value of the' shortage,, to assume the value of the property received to be the same as the value, found by them, of the property given in exchange.
It is unnecessary to pass upon the questions raised by the other assignments, as they will probably not arise upon another trial.
We are of opinion that the judgment of the Court of Civil Appeals and that of the trial court should be reversed, and the cause remanded for a new trial.
The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the'Supreme Court.. We approve the holding .of the Commission on the questions discussed. '
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