Hayter v. Hudgens
236 S.W. 232
Tex. App.
1921
Check Treatment
WILLSON, C. J.

(after stating the facts as above). An exception to the general rule which forbids suit “against an inhabitant of this state out of the county in which he has his domicile” exists “in all cases of fraud,” in which, it is provided, “suit may be instituted in the county in which the fraud was committed.” Article 1830, subd. 7, Vernon’s Statutes. Appellee’s claim of a right to maintain his suit against appellants in Rusk county was based on said exception.

The attack by appellants on the judgment sustaining appellee’s claim is on the ground that the testimony did not warrant a finding that they committed fraud, nor, if they did, that they committed it in Rusk county.

[1,2] Appellants did not offer any testimony at the trial, and it.is apparent from the statement above that the case, even from appellee’s viewpoint, was not fully developed. But, meager as it was, we think the testimony adduced, and permissible inferences from it, warranted the conclusion the trial court reached. We. think it was a fair inference from that testimony that Hayter knew that Edens, acting as appellee’s agent, had sold the land to Hargrove for $10,000. We think it also was a fair inference that Edens’ concealment from appellee of the fact that he had sold the land, and his suggestion to appellee that he sell it to Hayter, was in pursuance of an agreement between him and Hayter to substitute the latter for appellee as the vendor in the sale made to Hargrove, and in that way defraud appellee of the difference between the sum Hargrove had agreed to give for the land and the sum Hayter might be able to buy it for from appellee. And we think it also was a fair inference that it was in pursuance of such a conspiracy between Edens and Hayter that the latter negotiated with appellee for the purchase of the land and made appellee the offer over the telephone, which the latter accepted, to pay him $7,500 for the. property. If such inferences were properly deducible from the testimony, we think there can be no doubt the conclusion of the trial court that fraud was practiced on appellee by appellants was warranted; for fraud, while not exactly definable, undoubtedly exists when a person is induced to do a thing to his injury which he would not have done but for an act or concealment by another person which resulted in undue advantage to such other person, and involved a breach by him of a legal duty he owed the injured person, or a violation of trust or confidence which such injured person had a right to repose in him. Horton v. Smith, 145 S. W. 1088; 12 R. C. L. 229 ; 20 Cyc. 8. That Edens, as appellee’s agent, owed him the duty to advise him that he (Edens) had sold the land to Hargrove for $10,000, and that Edens, according to testimony the trial court had a' right to give weight to, violated trust and confidence appellee had a right to repose in him, is clear. Hohl v. Kellogg, 42 Tex. Civ. App. 636, 94 *234 S. W. 389; 2 C. J. 692; 1 Clark & Skyles on Agency, p. 907 et seq. That Hayter, if he knew that Edens had sold the land to Hargrove for $10,000, and if he agreed to act with Edens in concealing the fact from appellee and in inducing appellee to sell the land for less than $10,000, became a party to the wrong done appellee, and liable to ap-pellee as Edens was, we think is also clear. Wells v. Houston, 23 Tex. Civ. App. 629, 653, 57 S. W. 584, 597; Longworth v. Stevens, 145 S. W. 257, 262; 12 C. J. 610, and cases there cited. In the work last cited it is said:

“Where two or more persons enter into a conspiracy, any act done by either in furtherance of the common design and in accordance with the general plan becomes the act of all, and- each conspirator is responsible for such act.”

And in the ease first cited above (Wells v. Houston) it is said:

■“The law is that, where a man has conspired -with others to cheat and defraud the plaintiff •in the sale of certain property by fraudulent •concealments or misrepresentations, and the •fraud has been perpetrated accordingly, though ;by some other member of the conspiracy,- he will •be liable, even where he himself has not made any of the misrepresentations complained of.”

1[3] The contention of appellants that the testimony did not warrant a finding that they were guilty of fraud having been disposed of, there remains for consideration the point they make that, if the testimony warranted that finding, it did not warrant a finding that the fraud was committed in Rusk county. Evidently the trial court based his finding in that respect on the testimony as to the conversation over the telephone between Hayter and appellee, in which Hayter stated he could not give appellee the sum they had discussed ($8,076) on the occasion when appellee was in Nacogdoches county at his (Hayter’s) request, but would give him $7,500 for the land. That conversation, including the offer made in it by Hayter, the trial court doubtless concluded, as we think he had a right to, was in pursuance of the conspiracy he found appellants had formed. If it was, then the answer which should be made to the question as to whether fraud was committed in Rusk county or not depends on whether it should be said that the statement and offer was made in Nacogdoches county or in Rusk county; for if it was made in Rusk county in pursuance of the conspiracy, fraud was committed in that county. The question is not, as the parties assume, one as to where the contract between Hayter and Edens was made, but it is one as to where the offer by Hayter to appellee of $7,509 for the land, which the latter accepted, was made. We have concluded it was made in Rusk county,

and that the trial court therefore was warranted in finding that the fraud on appellee, if one was committed, was committed in that county. We do not see that the fact that the offer was made by Hayter over the telephone .made it any the less an offer to appellee in Rusk county than it would have been if Hay-ter had gone in person to Rusk county and there made it to appellee. The offer was not made to appellee until it reached him, and when it reached him he was in Rusk county.

The judgment is affirmed.

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