259 S.W. 923 | Tex. Comm'n App. | 1924
Plaintiff in error, Philip Freshwater, and defendants in error E. O. Hoyt and A. J. Bellport, Jr., on October 24, 1919, entered into a written contract, whereby it was agreed that said Freshwater make an assignment to said Hoyt and Bellport of an oil and gas lease permit to lot No. 8 and the W. ½ of lot No. 9 in block 1 of H. C. Poe third subdivision in Wichita county, and place same in escrow in the City National Bank of Wichita Falls, Tex., and to be delivered to Hoyt and Bellport upon the payment in full for said property of $230,000 as follows: $10,000 in cash, $10,000 within 30 days, and $10,000 within 60 days, for which Hoyt and Bellport would execute their notes; and $200,000 to be paid from the proceeds of one-half the oil produced from said property. Hoyt and Bellport were to begin a well on said property within 60 days
In December, 1919, the First National Bank of Chester, W. Va., filed suit against Hoyt and Bellport on the two notes, alleging that it was a purchaser of same for value before maturity. Defendants in error answered, admitting the execution of the notes, but alleging that they were procured through fraud and without consideration upon fraudulent representations made by Freshwater. They also alleged that said, bank was not an innocent holder for value, but was fraudulently acting for the payee, Freshwater. It was further alleged that the notes were executed pursuant to the terms of the contract of October 24, 1919, which was procured by Freshwater through his fraudulent representations that he had title and possession of this land, and that no one was claiming either title or possession adverse to him; that said representations were false; that said Freshwater was not in possession of said property, but the Sinclair Oil & Gas Company was in possession thereof and claiming both title and possession of same; that they relied upon such representation, and were induced thereby to execute the contract, the notes, and to pay the $10,000 in cash. They prayed that Freshwater be made a party defendant and for rescission of the contract, for cancellation of the two notes, and for judgment against Freshwater for the $10,000 cash payment, with interest.
Thereafter, on June 23, 1921, Freshwater filed his answer, alleging that he was the owner of the notes sued on, having repurchased from the bank. He denied the allegations of fraud made by Hoyt and Bellport, and prayed for judgment for the amount of said notes. On June 27, 1921, Hoyt and Bell-port filed their supplemental petition, tendering back to Freshwater the assignment in escrow in the City National Bank of Commerce of Wichita Falls which had never been delivered to them. The plaintiff bank was dropped from the suit, and the case tried before a jury on the issues between Freshwater and Hoyt and Bellport. On special issues the jury found that prior to October 24, 1919, Freshwater represented to Hoyt and Bellport that there was no adverse claim of title except what claim the state of Oklahoma might have, or placer mining claims, and that there was no one claiming possession to said lots adverse to him; that the Sinclair Oil & Gas Company was claiming title to the oil and gas rights on said lots, except a part thereof lying in the northwest corner below the actual low bank of the river, during all of the time covered by the negotiations and contract, and was in actual possession thereof; that Hoyt and Bellport were not able to enter the premises and get possession thereof for the purpose of complying with the terms of the contract; that Hoyt and Bellport would not have entered into the contract and paid the money and executed-the notes had they known that said company was claiming title to, or was in actual possession of, the larger part of said lots; that they relied upon said representations which were material in inducing them to enter into the contract, and did not know at the time the money was paid and notes executed that said Sinclair Company was claiming title or possession to the oil and gas rights on any part of said property; that Freshwater stated to them that he was in possession of the land, which was a mere expression of opinion, without any intention on his part to deceive or mislead them by such expression of opinion; that Hoyt and Bellport were induced by said representation to make said payments and execute said notes, and relied thereon in executing said contract, and that said representation as to possession was material; that Hoyt and Bellport made no independent investigation as to the status of the possession of the property prior to the execution of the contract, and that they did not have full knowledge of the status of the title or possession of the property at the time they made the payment of $7,500. The jury also made other findings which are not deemed material to the questions here raised by the plaintiff in error.
In the trial_ court both Freshwater' and Hoyt and Bellport moved for judgment on •the special isspes answered by the jury. The motion of Hoyt and' Bellport was overruled and that of Freshwater was sustained, and judgment was rendered in his favor for $24,-933.32. On appeal the Court of Civil Appeals reversed the judgment of the trial court, and rendered judgment in favor of Hoyt and Bell-port, canceling the two notes sued on and for the recovery of $10,000 fraudulently procured from them, holding that the trial court erred in denying the motion of 1-Ioyt and Bellport for judgment in their favor upon the issues found by the jury. It was there held that the material false representations found by the jury to. have been made by Freshwater, and relied on by Hoyt and Bellport,
“One who undertakes to discover the truth of representations made to him is charged with the knowledge of everything which a proper investigation would disclose, and would not be justified in acting upon fraudulent representations merely because they were made to him.”
In the case of Cresap v. Manor, above, the holding of the court is as follows:
“The point is also made that Cresap, having deceived Manor as to the value of the $100 note on Gossett, given in part payment of the land, and thereby prevented Manor from retaining a lien on the land, the waiver cannot be insisted upon by the appellant.
“If the supposed fraudulent statement as to the note had been acted upon by Manor, there might be some necessity for us to pass upon the point raised. But it seems from uncon-tradicted evidence that, if such a representation was made by Cresap, it was not relied on by the appellee. Cresap states that before the bargain was made Manor went to Gossett to make -inquiries in reference to both the notes, and upon his return said the notes were all right and he would make the trade. This is not denied by Manor, nor is there any evidence tending to show that in making the trade he reposed upon any statement of Cresap to the effect that Gossett had a good title to the land for which the $100 note was given. Although, he says, such statement was made to him by the appellant, Manor seems not to have been satisfied, but did inquire for himself. We do not think that under such a state of case the vendor’s lien otherwise waived should be considered as revived.”
In the instant case the jury found that Hoyt and Bellport did not make any ‘independent investigation as to the status of possession of the property, but relied on the false representations made by Freshwater. These findings are amply supported by the evidence, and the Court of Civil Appeals, on application of plaintiff in error, refused to find to the contrary. In this state of the record it is not to be presumed that the court found “inferentially” as a fact that Hoyt and Bellport undertook an independent investigation as to the true facts of possession. Before entering into the contract they went to see the property; their purpose was to investigate its location and proximity to oil production. They made inquiry as to production of an adjoining lease. However, they neither made nor undertook to make any inquiry or investigation as to the status of possession. Freshwater had assured them that he had possession, and that there was no one claiming either title or possession adverse to him. They relied on his false representations. He claims that, having gone to see the property, they thereby undertook an independent investigation of the facts as to his possession and adverse claims, and for that reason are estopped and cannot claim that they relied on his misrepresentations. To sustain his contention would be basing an es-toppel on shadow rather than on substance. He is in no position to claim that they should have investigated the truthfulness of his statements. They owed him no' such duty. Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808; Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900; Moore v. Beakley (Tex. Com. App.) 215 S. W. 957.
We recommend that the judgment of the Court of Civil Appeals be affirmed.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
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