Landfried v. Milam
214 S.W. 847
Tex. App.
1919
Check Treatment
WILLSON, C. J.

(after stating the facts as above). [1, 2] The contention presented by the third assignment, to. wit, that the trial court erred when he refused appellants’ request that he submit to the jury an issue as to whether the salesman, Gode, represented to them that the lots in the additioh each had a frontage of 50 fe'et and a depth of 165 feet, will be sustained. It conclusively appeared that the lots 1, 2, and 3 in question here, and all but a few of the other lots in the addition, had a frontage of only 25 feet and a depth of only 120 feet, and that the few that had a frontage of more than 25 feet had a depth of less than 120 feet. Appellant Henry Landfried as a witness testified that Gode told him the lots were 50 by 165 feet in size. Said Landfried further testified that he believed what Gode told him, and was thereby induced to buy the lots he did buy. That, on the record sent to this court, the representation was about a material fact, caimot be doubted. If Gode made it, and appellants, having a right to do so, relied on it as true, we think they were entitled to relief they sought (1 Black on Rescission and Cancellation, § 68 et seq.), notwithstanding the stipulation in the agreement between them and appellees that no agent had power to bind the latter “by any act or statement not set forth in this document.” Machine Co. v. Webb, 181 S. W. 853; Gypsum Co. v. Shields, 106 S. W. 724; Id., 101 Tex. 473, 108 S. W. 1165; Manufacturing Co. v. Celum, 189 S. W. 988; Insurance Co. v. Bomar, 169 S. W. 1062; Harris v. Mann, 207 S. W. 156; Avery Co. v. Mercantile Co., 183 S. W. 43; Import Co. v. Duncan, 182 S. W. 888. Whether Gode made the representation or not, and, if he did, whether appellants had a right to rely on it and did rely on it as true or not, we think, on the testimony in the record, were questions for the jury, and not for the court to determine.

[3] The contention presented by the seventh assignment, that the trial .court-erred when he refused appellants’ request that he submit to the jury an issue as to whether Gode represented to them that the Travis Park addition was within the Waco city limits, also would be sustained, if there was any testimony in the record tending to show that the lots in the addition were less valuable than they would have been, had they been inside the city limits. The law seems to be that, to have entitled appellants to the relief they sought, it must have appeared that they had suffered “loss, damages, or injury” as a consequence of their reliance on the truth of the representation. 1 Black on Rescission and Cancellation, § 68, and section 112 and authorities there cited.

[4] The contention presented by the eleventh assignment, that the trial court erred when he refused to permit appellants to prove by the witnesses Maxey and others that the market value of the lots in the addition was only $25 each, will be sustained. The testimony excluded was, we think, clearly, admissible on issues made by the pleadings.

We do not think contentions presented by assignments we have not mentioned, and which have not been disposed of by what has been said, should be sustained.

The judgment will be reversed, and the cause will be remanded for a new trial.

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