41 S.W. 402 | Tex. App. | 1897
On May 10, 1894, W.R. McGill purchased from Lon P. McFarland certain mares and colts. The bill of sale executed by the latter to the former recites a transfer with warranty of title to the animals sold, "in consideration of $1500 paid and promised to be paid by W.R. McGill, as follows: $250 cash, and five promissory notes this day executed by said McGill, for $250 each, and due and payable *299 as follows, to wit: first due November 10, 1894; second due 10th day of May, 1895; third due 10th day of May, 1896; fourth due 10th day of May, 1897; fifth due 10th day of May, 1898."
McGill brought this suit to recover from McFarland damages on account of fraud practiced upon him by McFarland in selling the property, and from a verdict and judgment in favor of the plaintiff in the sum of $1200 the defendant appeals.
Having, in effect, alleged as a cause of action that at the time and prior to the execution of the bill of sale (attached to the petition as an exhibit) and the making of the contract of sale, the defendant falsely and fraudulently represented to the plaintiff that all of the horses in question were standard bred trotting horses, and eligible and subject to registration as such in any association or institution for that purpose in the United States, the petition proceeded with the following allegations: "That in addition to said representations, and in part consideration for the money and notes above referred to, the defendant promised and agreed with the plaintiff that he, the said defendant, would furnish to the plaintiff such affidavits, certificates, and proofs of pedigree of said stock as would enable the plaintiff to procure the registration of said horses in the association above referred to. * * * That said defendant has wholly failed and refused to carry out his agreement to furnish this plaintiff with such certificates, affidavits, and proofs as would enable plaintiff to procure the registration of said horses."
Thus it will be noted that as a ground of recovery the plaintiff alleged, in effect, a failure of consideration in the matter of the execution of the notes above described. Adopting this theory, the court in the third paragraph of its charge instructed the jury, that if at the time of the sale the defendant, as a part of the consideration for the trade, promised and agreed with the plaintiff that he would furnish him all necessary proofs and certificates to procure the registration of the horses, and if the defendant failed to furnish the proofs and certificates, and by reason thereof the plaintiff had been damaged, a verdict should be returned for the plaintiff.
The defendant addressed a special exception to that part of the petition setting up as an additional consideration to the purchase of the horses, as disclosed by the bill of sale, the contemporaneous verbal agreement to furnish proofs of pedigree such as would enable the plaintiff to procure the registration of the horses.
We think that this special exception should have been sustained. The bill of sale, engrafted upon the allegations of the petition, purports to be a complete contract in writing. It is not alleged that the omission to insert the additional consideration above specified was due to fraud, accident, or mistake. The statement of the consideration which the writing contains is contractual in its nature, and it can not be varied by proof of a parol contemporaneous agreement engrafting an additional consideration. Pickett v. Green, 22 N.E. Rep., 737; Pennsylvania Co. v. Dolan, 32 N.E. Rep., 806. *300
We are unable to say that the erroneous action of the court upon this special exception was harmless, because, as we have noted, the view of the court was carried in its instructions to the jury, and probably influenced their verdict.
In view of another trial, we deem it proper to state, with reference to these promissory representations, that if they constituted promises which were false, and if they were made at the time of the transaction with the design of cheating and deceiving the plaintiff, and if the defendant at the time had no intention of performing the promises, but used them merely as false pretenses to induce the plaintiff to make the purchase, and if his conduct had that effect, such promises, followed by a noncompliance with them, would entitle the plaintiff to sue for damages. Railway v. Titterington,
Fraud thus arising was not, however, submitted by the court, but the promissory representations, as we have noted, were erroneously suggested to the jury as a cause of action, without reference to their fraudulent character, and solely from the improper standpoint of a failure of consideration.
The remaining feature of the plaintiff's cause of action, consisting in the alleged fraudulent representations of an existing condition, viz., that the horses were standard-bred trotting horses, and eligible and subject to registration as such, was, we think, properly submitted by the court; but upon the second aspect, which we have heretofore considered, we think there was error as above indicated, for which we feel constrained to reverse the judgment and remand the cause for a new trial. It is so ordered.
Reversed and remanded.