58 Tex. 130 | Tex. | 1882
But one question is presented by the record for determination, and that is, did the court err in sustaining the exceptions to the original and amended answer 1
The proposition that the representations of the agent that the road would be constructed and the depots erected as designated upon the map could not be fraudulent because these representations related to matters in the future, is not correct under the facts of this case.
Justice Wheeler, in discussing that question in Henderson v. Bail-road Company, 17 Tex., 580, used the following language: “But it is not necessary, in order to render the representations and assurances of a party, on which others have acted, binding upon him, that they should have relation to facts which had previously transpired. The representations as to what the defendants would do, when used as inducements to others to contract with them, became assurances and undertakings which they were bound to fulfil. They were obligatory upon them, and must be so held, or the contract would be void for the want of mutuality.”
So in this case, if the lot was sold with reference to the map, and upon the representations that the road would and should be constructed and depots erected as therein delineated, and that the appellant was thereby induced to make the purchase, then these representations are obligatory upon the party, and a failure to comply with them would be just as detrimental to appellant as if he had been induced to make the purchase upon a misrepresentation relating to some matter in the past. The matters to be done constituted a part of the consideration of the note.
The damages asserted in the answer, accruing to appellant from his constructing improvements on the lot, are not such as can be recovered in a case like this. It does not appear from the answer but that these improvements were placed upon the lot after the road had been constructed through and the depots erected in the town of lading; and if the improvements were placed upon the lot before the road was so constructed and the depots erected, then such dam
In a suit of this character, the measure of damages for failing to comply with the assurances upon which the property Avas sold would ordinarily be the difference between the contract price and the actual value of the property. There is nothing in the circumstances of this case, as presented by the answer, that would require the application of any other than the general rule. Wright v. Davenport, 44 Tex., 164.
It is urged that the appellant ought to have made the railroad company a party to the suit, so as to have secured redress from the company for the Avrongs complained about.
But the effect of the averments of the answer is, that appellee Avas throughout the entire transaction, including this suit, acting in the capacity of trustee or agent for the railroad company. If such be the fact, there is no reason Avhy appellant could not, as against him, assert the damages and secure an abatement of the purchase money, not to exceed the amount of the note sued on. Under the averments of the ansAver, appellant could not recover an individual judgment against appellee for damages accruing to him on account of the Avrongs done by the agents of the railroad company.
Appellee is not averred to be the owner of the railroad; it is said that he is the reputed owner, and the president and acting general manager of the company. It is not averred that the “ Galveston, Harrisburg & San Antonio Bailroad Company ” is a corporation duly incorporated, and the designation of the same by that name does not give rise to the presumption that it is a corporation. Life Insurance Co. v. Davidge, 51 Tex., 249.
Considering it, hoAvever, as an unincorporated company or partnership, or as a body duly incorporated, the same result would folioav. The averment that appellee .is the reputed owner of the railroad is not tantamount to a direct averment that he Avas the owner. He might be the reputed owner, but in fact have no interest in the matter whatever; and as the party's pleading must be taken most strongly against the pleader, under the averments in the answer appellee cannot be considered as the owner of the railroad.
Again, he might have been the owner at the time the suit Avas instituted, but not the oAvner at the time the sale Avas made, and
In our opinion, the averments contained in the original and amended answer are sufficient to entitle appellant to a hearing to the extent of securing an abatement of the purchase money, as heretofore mentioned; and to that extent the court erred in sustaining appellee’s exceptions.
We conclude that the judgment ought to be reversed and the cause remanded.
Reversed and remanded.