Gillespie v. Gray
230 S.W. 1027
Tex. App.
1921
Check Treatment
SMITH, J.

This is the second appeal of this case. 214 S. W. 730. In each of the two trials Gray obtained judgment, and for the same amount, and the questions raised here were practically all adjudicated in the first appeal. The case is fully stated in the former opinion, to which reference is here made for such statement in detail. It will be sufficient here to state, genеrally, that appellant owned the land in controversy, and in August, 1913, sold it to appellee, by the acrе, at the agreed price of $100 an acre, up‘on appellant’s express representation that *1028 the tract conveyed contained 128 acres. The deed of conveyance desсribed by metes and bounds an area of 128 acres, and appellee paid for 128 acres; but as a matter of fact appellant had title to and could actually convey only 114 acres. The 114 аcres were within an old inclosure marking the boundary, while the remaining 14 acres included within the description in, the deed lay outside the inclosure. Appellant thought he owned and had title to the entire acreаge described, and there being no bad faith involved, the error was purely a mistake into which all conсerned were led. The high character and reputation of appellant, the manner of his reрresentations about the acreage, all the circumstances ‍​​​‌‌​‌​‌​‌‌‌​‌‌​‌​‌​​‌​​​​​​‌​‌​‌​‌​​​‌​‌‌‌‌​​​‍surrounding and following the transactions, were such as prevented appellee, in the exercise of ordinary diligence, from discоvering, until August, 1917, when he actually made such discovery, that there was a shortage in the acreage he hаd paid for. The difference between the value of the acreage appellee paid for, and* the value of that to which appellant delivered title to him, was $1,400, which amount appеllee recovered, with interest. The findings of the jury embrace the foregoing facts, which were fully supported by the evidence. The deed to the land was made on September 4, 1913, but appellee did not gеt possession until January 1, 1914. This suit was filed November 2, 1917.

[1, 2] Equity will grant relief to the purchaser where, in the sale of land by the acre, and not in bulk, the quantity .is misrepresented by the seller, and the deficiency is so great as to be material and substantial. This is true, whether the misrepresentation is fraudulently made, or innocently made, or the mistаke is mutual among the parties to the transaction. This is now well settled in Texas. Here appellant represented the land sold to embrace 128 acres, and that it was embraced in an old inclosure, and that this inclosure marked its boundaries. He believed there were 128 acres in the inclosure. He originally purchased the land, and had always held it, in that belief. These circumstances, in fact, gave that much more force to his representations. But the result was the same as if he had made the representations in the utmost bad faith, and with the deliberate purpose of defrauding appellee out of the price of the undelivered acreage. A suit in equity to recover his damages was available to the рurchaser in either case. Suit upon the general warranty would not lie, as such warranty is of title, and not of quantity. Daughtrey v. Knolle, 44 Tex. 450; Holland v. Ashley, 158.S. W. 1033, and authorities there cited. Appellee adopted an aрpropriate remedy when he brought ‍​​​‌‌​‌​‌​‌‌‌​‌‌​‌​‌​​‌​​​​​​‌​‌​‌​‌​​​‌​‌‌‌‌​​​‍an action in equity to recover the damages accruing to him by reason of the deficiency in acreage. Gillespie v. Gray, 214 S. W. 730; Brown v. Yoakum, 170 S. W. 803, and authorities there cited.

[3, 4] The four-year statute of limitations аpplies in actions of this character. Gillespie v. Gray, supra; Hohertz v. Durham, 224 S. W. 549; Holland v. Ashley, supra; Blount v. Blelcer, 13 Tex. Civ. App. 227, 35 S. W. 863; Isaacks v. Wright, 50 Tex. Civ. App. 312, 110 S. W. 970; Such limitation does not begin to operate until the purchaser discovers, or should discover in the exercise of ordinary diligеnce, the shortage in acreage, and the jury in this case found, upon what we hold to have been sufficient ‍​​​‌‌​‌​‌​‌‌‌​‌‌​‌​‌​​‌​​​​​​‌​‌​‌​‌​​​‌​‌‌‌‌​​​‍evidence, that the plaintiff! in the exercise of ordinary care did not discover the deficiency until within three months of the date of the institution of this suit. Brown v. Yoakum, supra, and authorities there cited.

The measure of damages in this case was defined by the trial court in its charge to the jury to be “the difference bеtween the value of the property as sold, and the value of the property as actually received by” ap-pellee. As appellant does not complain of the form or substancе of this charge, we will not discuss it, or express any opinion as to whether or not it correctly states thе true measure of damages applicable to actions of this nature, the latest authoritativе definition of which seems to be that set out in Vogt v. Smalley (Com. App.) 210 S. W. 511, as follows:

“The correct rule is that plaintiff’s damаge is measured by the difference between the price paid by him for the land which it was represented ‍​​​‌‌​‌​‌​‌‌‌​‌‌​‌​‌​​‌​​​​​​‌​‌​‌​‌​​​‌​‌‌‌‌​​​‍that he was receiving by his deed of conveyance and the value of what he actually received as of the date óf his purchase, with interest.”

The conclusions we have set out require us to overrule all of appellant’s assignments of error, and affirm the judgment of the court below.

Affirmed.

cgumFor other oases see same topic and KEY-NUMBER ‍​​​‌‌​‌​‌​‌‌‌​‌‌​‌​‌​​‌​​​​​​‌​‌​‌​‌​​​‌​‌‌‌‌​​​‍in all Key-Numbered Digests and Indexes