Loper v. Robinson
54 Tex. 510
Tex.
1881
Check Treatment
Quinan, Commissioner.

The assignments of error which complain of the verdict, it will be seen from an examination of the testimony, are not well taken. As respects the quantity of land in the survey the testimony is conflicting, and it was for the jury to determine the issue from the facts before them. Upon this subject, we cannot say that there was no evidence to sustain the finding, and consequently their vórdict cannot be disturbed.

The only objection made to the charge of the court is that it qualified the effect of the representations of plaintiff with respect to the cedar brake, by the use of the word “willfully,” and made the right of the defendants to recover because of the falsity of them to depend upon the fact, not only that they were induced to buy the land by them, and that they were false, but that they must have been willfully made.

*514It is not very clear to us that this objection is sound. It is true that the representations by which a party may be induced to act, and upon which he does act, relying upon them, need not be fraudulently made, to entitle him to relief for any injury caused by them. If they are intended to influence him, and expected to have that effect, and really do influence his conduct, it is but just that the party making them shall be held responsible for their verity, if they should prove false, no matter how innocently made or honestly believed. Pendarvis v. Gray, 41 Tex., 329, is a case very much like the present in some of its features. It is there said, that the fact that the defendant innocently represented the land to be on a certain creek, leaves him hable for the legal consequences of his statements. They are the same as if they were made with the intention to deceive. But there the defendant had pointed out to plaintiff the land, telling him it was his, that it was every way suitable for his purposes, and the plaintiff bought solely relying upon those representations. • '

In Mitchell v. Zimmerman, 4 Tex., 80, Mr. Justice "Wheeler says; “ There was a gross and palpable misrepresentation intentionally practiced upon the defendant by the plaintiff in a most material point.” “The representation was in a matter respecting which the defendant is not supposed to have been equally with the plaintiff acquainted with the facts, and it was made in a manner so positive and definite as naturally to induce the former to forbear using the means of information which for his own security he might otherwise have employed. And these are the circumstances which render the misrepresentations of a character to avoid the contract.” The cases in our reports are generally those in which there was an intention to deceive, but still there are many others in which the rule is laid down, that it is not material whether the party misrepresenting the fact upon the belief of which another is *515induced to act, knew it to be false, or believed it to be true; he is still responsible for the injury sustained by the party who relied upon it. See Sayles’ Treatise, 2d ed., and cases cited in § 84.

The charge in the present case would have been doubtless more consonant with the views expressed by our supreme court if the word willfully had been omitted. The word does not, however, mean “knowingly,” or imply, as appellant contends, an intention to misrepresent. It has received judicial construction in the doctrine of estoppels. In Freeman v. Cooke, 2 Exch., 663, Parke, B., says: “By this term willfully we must understand, if. not that the party represents that to be true which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon accordingly.” 2 Parsons on Cont., 193. And if in this sense it had been used in the charge given, and could so have been understood only to have been used, not as requiring that Robinson’s representations, in order that he should have been bound by them, should have been wrongfully or deceitfully made, but that, whether innocently made or not, they were made with a design to influence the conduct of the defendants, and did so influence them, as Robinson knew, we might hesitate to pronounce it erroneous. It would seem to be a harsh rule to visit the same consequences upon the utterances of honestly believed statements, not made with the intention that they shall be acted upon, and without expectation that they would be, as where false statements are made, though in ignorance of their falsity, but with the intention that they shall be acted upon and believed by others, who are thereby induced to do what they would not otherwise.

Conceding, however, that the charge is erroneous, it by no means follows that the error is sufficient to work a reversal of the judgment.

*516An erroneous instruction will not vitiate a judgment unless shown to have produced actual or possible injury to the appellant. Salinas v. Wright, 11 Tex., 572; Hollingsworth v. Holshousen, 17 Tex., 41. So in Carter v. Gaines, 44 Tex., 548, it was held that an erroneous charge, which manifestly from the record could have worked no injury, and did not affect the rights of the parties, was no ground for reversal.

Now, in the present case, the statement of facts discloses that it was proven by the oath of the defendants themselves, that at the time when they executed the note sued on, and when they received their deed to the land, they had definitely ascertained and well knew that there was no cedar brake upon the land they purchased. Whatever may have been their information when they first traded for the land, and whatever representations, true or false, may have been then made to them by Robinson to induce them to purchase, the fact is incontestible, that when they consummated their contract, before then incomplete, and surveyed the land, and executed their note for the purchase money, they had the fullest knowledge, from actual inspection, of the character of the property they were purchasing. It is beyond controversy that there was then no deceit practiced upon them, nor could there have been. If they were circumvented they were willing dupes. They shut their eyes and closed their lips, when they could have seen for themselves, and uttered no complaint when they could have spoken. Under such circumstances, they have no right to complain of the enforcement against them of their obligation knowingly, willfully and deliberately consummated. Thatcher v. Jones, 31 Maine, 528. “It is morally certain that they were not injured ” by the erroneous instruction given by-the judge upon the trial. The facts proved precluded them from any defense upon the ground of Robinson’s *517representations, true or false. So that it becomes wholly immaterial whether the instruction was right or wrong. In any event they are bound to pay the obligation.

There was consequently no error in refusing a new trial.

The proper disposition of this case is to affirm the judgment.

Affirmed.

[Opinion delivered March 18, 1881.]