Landrum v. Thomas
149 S.W. 813
Tex. App.
1912
Check Treatment
KEY, C. J.

(after stating the facts as above). The assignments of error presented in appellant’s brief present substantially the following contentions: First, error in the court’s charge, because of the omission to submit the question of mutual mistake; second, the refusal of an instruction, asked by appellant, which it is claimed would have cured the alleged error in the court’s charge; and, third, that the verdict is not supported by the testimony.

[1] As to the first question, the appellant contends that, if the charge requested by him was not properly framed, it was sufficient to call the attention of the court to the question of mutual mistake, and therefore it was reversible error for the court not to charge the jury upon that phase of the case. While there are some decisions in this state which seem to support the contention referred to, later cases decided by the Supreme Court of this state hold that a case should not be reversed merely on account of an omission to charge upon a particular issue, unless the complaining party has requested a proper charge upon the subject. Railway Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538.

[2-4] As to the second question, the charge which was refused reads as follows: “If you believe from a preponderance of the evidence that at the time defendant, Thomas, sold said land to the plaintiff, Landrum, that said Thomas and said Landrum each believed that the two tracts of land conveyed contained in the aggregate 753% acres and that said parties were mutually mistaken as to the quantity of land, and that the said Thomas represented said quantity as being 753% acres, and said Landrum was ignorant as to the number of acres, and believed and relied upon the representations >>f said Thomas, and was thereby induced to purchase and pay for said land as 753% acres, then you will find for plaintiff, and assess the damages as given in the main charge.”

We hold that no error was committed in refusing to give that instruction, because it was not properly framed. It made no distinction between a representation made as an opinion only and a representation intended as the statement of a fact. We think the charge quoted relates as much, if not more, to the question of fraud than to mistake; and we hold that if the representation referred to was merely expressed as an opinion, and not as the statement of a fact, it did not constitute a fraud. If it was intended and stated as a representation of fact, and appellant was misled and induced thereby to make the trade referred to, then such representation, if false, constituted a fraud, and entitled appellant to recover damages, although appellee may have believed that the representation was true; and it would not have been improper for the court to have so instructed the jury. But the court’s charge did not instruct the jury that Thomas’ knowledge or want of knowledge, or his good or bad faith, had anything to do with the case, but did instruct them that, if he made a misrepresentation as a matter of fact as to the quantity of land conveyed to appellant, Landrum, and if they found the other necessary facts, to find for Landrum. There was no affirmative error in that charge, and, if appellant desired any elaboration or explanation in reference thereto, he should have submitted an instruction properly framed, and not calculated to mislead the jury in any particular.

[5] As to the third question, if the jury believed the testimony given by the defendant, Thomas, the latter was entitled to the verdict that was rendered for him. There was a direct conflict between his testimony and that given by the plaintiff, and it was the peculiar province of the jury to determine which was the more credible, and their decision upon that point, and the action of the trial court in refusing to set it aside, ought not and will not be overruled by this court.

[6] In conclusion, it is deemed proper to say that it is doubted if the question of mutual mistake, otherwise than as involved in the question of fraud, has any application to this case. In other words, if both Thomas and Landrum were honestly mistaken as to the number of acres in the tracts of land conveyed by the former to the latter, and Thomas did nothing which in law constituted a fraud, it does not follow that Land-rum would be entitled to maintain an action against Thomas and recover a sum of money as damages. While equity will afford relief as to contracts and other transactions founded upon mutual mistake, such relief *815 should be fair and just to each party alike. In such cases it would seem that rescission of the contract and a restoration of each party to the position be occupied before the contract was made would be the proper relief, unless ,it was alleged and proved that some other would be more just and equitable. In this case appellant did not ask for a rescission of the contract, nor allege any facts showing that rescission could not be made or would operate unfairly, but merely sought to recover damages. The uncontro-verted testimony shows that the sale of the land was not at an agreed price per acre, but was a sale of the two tracts in gross, and that Thomas agreed to accept in part payment certain real estate which was conveyed to him by Landrum at an agreed valuation of $1,500. It may be that the land conveyed by Thomas to Landrum has enhanced in value, and that the real estate conveyed by Landrum to him has neither increased nor diminished in value; and, if such be the case, and Thomas was guilty of no fraud, either actual or constructive, and there was merely a mutual mistake in the minds of both as to the quantity of land conveyed by Thomas to Landrum, would it not be unjust and inequitable to require the former to retain the consideration which he had received under such mutual mistake, and pay to the latter an additional sum, while if the transaction was rescinded Land-rum, in so far as the record shows, would recover back all the consideration which passed from him to Thomas, and therefore would sustain no injury? Of course, in awarding a rescission, if it should appear that there was any difference in the value of the use of the property that was exchanged, the decree of the court could require the payment of such difference.

For these reasons it seems to us that no error was committed in not submitting to the jury any question as to the plaintiff’s right to recover damages founded alone upon the alleged issue of mutual mistake. No error has been shown, and the judgment is affirmed.

Affirmed.