29 Tex. 394 | Tex. | 1867
The note upon which this action is founded was to be paid upon condition that the Galveston and Red River Railway Company completed the railroad to the-river Navasoto by the 16th of October, 1859. Plaintiff averred
Defendant avers that he was induced to execute said note by fraudulent representations of the agent of the company, to the effect that the G-alveston and Red River Railway Company had surveyed and located the line of their road to the Brasos river, and that the road would run up the Brasos valley; that said representations were false, and made with the design to induce the defendant to sign said note, and that the plaintiff obtained the note after it was due, with a full knowledge of the fraud by which it was procured. It is further alleged, that to induce him to sign said note, the payee thereof represented that said railroad would be completed to a point on the Brasos river by the fall or winter of 1857; that said representations have proved to be false, and were made for the purpose to induce him to sign said note, and that he did so sign it in consequence of said representations.
It is averred that said note was given upon conditions which have not been performed.
Theodore Kayser, a witness for plaintiff, testified that he was the chief engineer upon the road; that it was laid in a good substantial manner to within a few rods of the Bavasoto river, in July, 1859, but was not open to general railroad purposes until January, 1860; that it was used for construction purposes before that time, but that the excavations were not finished, and the embankments were not made according to profile; that the bridges were temporary and grades imperfect. That it was possible to use the road by having a large number of extra hands on it to keep it up. That a large amount of work was done subsequently to September, 1859; that the road was not completed, strictly speaking, by the 16th of September, 1859; that he had never seen a complete road—there was always something to be done; that the road was in such a state of completion as to have enabled the cars to have run reg
"W. J. Kyle, for plaintiff, testified that he was engaged on the road from February, 1859, to the completion of the road, in July, 1859. That construction-cars were used on the road, carrying as many tons as the engineer would allow to go on the cars. That the road was laid down in a rough condition, as he was informed by the engineer, but he considered the road substantial to run construction-trains to within a few hundred yards of the river, but might have gone nearer the river if necessary. That no forfeiture attached in consequence of the company failing to complete the road. That the grades'in some places were imperfect, the culverts temporary, but substantial for construction-trains.
F. A. Rice, a witness for plaintiff, testified that, in July, 1859, he passed over the road from Hempstead to within a short distance of the Havasoto river on a passenger-car; that- the State engineer was along to examine the road and report upon its condition; that witness did not examine the work; that the cars made good speed on part, and went slowly on part of the road, and were compelled to stop occasionally, for reasons witness could not explain, as he was in the inside of the cars, and did not go out to examine ; was informed that the State engineer made such report as to enable the company to draw, the land bonus, -and that witness drew the loan .from the State; did not know of the third section being used between August, 1859, and January, 1860, for any other than construction purposes.
H. H. Allen, for plaintiff, testified that he was the agent of the railroad company during the year 1835; that he was employed by the company to solicit subscriptions to said
Hill, a witness for the defendant, testified that he had been engaged in railroad building twenty years; that he had traveled over the third section of the Galveston and Bed Biver railroad in January, 1860; that the road was incomplete in many respects; that it had not been completed up to that time for usual and practical railroad purposes; that the ties were laid on the prairie without excavation or embankment; and, in places, some portion of the iron which had been laid was several inches under the earth, on account of the incomplete manner of the work; he had never seen such a road called complete.
It is not believed that the statements made by Allen were calculated to deceive the defendant. It is not shown that Allen stated anything as a fact that was untrue. The defendant must have known at the time when conversing with Allen that the statements of the latter were but the expression of an opinion. Allen said the road would be completed by the fall of 1858, but upon what facts he founds that opinion is not stated. The party addressed knew the statement
In 1 Story’s Eq., § 191, it is said, that “the representations must not only be something material, but it must be something in regard to which the one party places a known trust and confidence in the other. It must not be a mere matter of opinion, equally open to both parties for examination and inquiry, when neither is presumed to trust to the other, but to rely on his own judgment.”
Again, in § 199 it is said: “For is it every willful misrepresentation of a fact which will avoid a contract upon the ground of fraud, if it be of such a nature that the other party had no right to place reliance on it. * * Courts of equity, like courts of law, do not aid parties who do not use their own sense and discretion upon matters of this sort.”
In Trower v. Newcome, 3 Mer., 704, 706, “The bill was by a vendor for specific performance of an agreement by the vendee to purchase the advowson of a certain church; alleged that the plaintiff, being seized in fee of the advowson, caused the same to be set up to sale by auction, when the defendant became the purchaser, according to the conditions of sale.” The printed circular contained a descrip
The plaintiff’s solicitor, in answer to a letter from the defendant’s solicitor, said: “We have no objection to the patron engaging, by covenant or bond, that the present incumbent will avoid the living on the death of a gentleman aged eighty-two.” It appeared in evidence, that the incumbent of the church in question expected to be presented to another living on the death of its incumbent, who was aged eighty-two. “It was held, that the representation made by the printed circulars, so vague and uncertain that the court could take no notice of it judicially, and that its only effect ought to have been to put the defendant upon making inquiries respecting the circumstance under which the alleged avoidance was likely to take place, previous to his becoming the purchaser.”
In Scott v. Hanson, 1 Sim., 13-15, “An estate was sold by auction, described in the particulars of the sale as consisting of fourteen acres of uncommonly rich water-meadow land.” A suit having been instituted by the vendor for a specific performance of the contract, it appeared in evidence, that on account of the high level of this meadow and the low level of some adjoining land, the former was imperfectly watered. It was objected for the purchaser, that it was not proved to be a water meadow. * * And it was insisted, that to describe it * * as uncommonly rich water-meadow land was a misrepresentation, and that a court of equity ought not to assist the vendor.” It was held, “that a representation which is vague and indefinite is to be treated by a purchaser only as a ground for inquiry. .* * “ Unless, in the expression used in this case, it can be considered as a representation that the land in
In Davis v. Meeker, 5 Johns., 354, Meeker brought an action for deceit in the sale of a wagon. She had paid the defendant $50 for the wagon, and averred that the defendant did falsely and fraudulently assert that he had been frequently offered, by different persons, $50 for the wagon, by reason of which false assertion the plaintiff was induced to believe the wagon was worth that sum, whereas, in fact, it was not worth more than $25. The plaintiff had merely seen the wagon; there was no warranty. The court held, that the plaintiff purchased the wagon on sight, and the assertion of the defendant that it was worth more than its real value furnishes no ground of action. (Snell, Stagg & Co. v. Moses & Sons, 1 Johns., 97-106; Murford v. McPherson, 1 Johns., 414-418; Holden v. Dakin, 4 Johns., 421.)
It was held, in Juzon v. Toulmin, 9 Ala., 684, “if one person make a representation to another, who is going to deal in a matter of interest upon the faith of that representation, he shall make it good if he knew it to be false. But to induce the interference of equity in such a case it is not enough to establish the fact of misrepresentation, it must also be shown to have been in a matter of importance to the interest of the other party, and that it actually did mislead him. * * But, as misrepresention in a matter of opinion and fact, equally open to the inquiries of both, and in regard to which neither could be presumed to trust
The representation made by Allen, as the agent of the railroad company, cannot avail as a defense to this action. It does not appear that the defendant was not as well informed in regard to the facts as Allen was.
The completing of the railroad to the Kavasoto river by the 16th of October, 1859, was a condition that must be substantially complied with to authorize the plaintiff to recover in this action, unless he may recover as a purchaser of the note, for a valuable consideration, without notice, before the note became due.
The pleadings put in issue the completing of the railroad to the Kavasoto river by the 16th of October, 1859. The question was submitted to the jury on a charge to which no exceptions have been taken, and it is believed that the law of the case was fairly presented to the jury for their consideration. They have found in favor of the plaintiff. It is believed that the verdict is sustained by the evidence sufficiently to-authorize an affirmance. It is shown beyond controversy that cars did pass over the line of the road more than two months before it was to have been completed by the terms of the contract between the parties to this action. The testimony does not show that at this time the work was so done that the road could be used for the purpose of transportation, without requiring hands to be on the line of the road for the purpose of repairing it, nor does the contract require that it should have been so completed as not to require repairs.
It appears that it was so completed as to be received by the agent of the State who was appointed to examine it, and that the loan was made to the road, which could only be made to roads that were completed,
There is no error in the judgment, and it is
Aeeirmed.