OPINION
This is аn appeal from a summary judgment involving a suit for rescission of a *850 contract and for damages resulting from allеged fraudulent representations. Pen-roc Oil Corporation, Plaintiff-Appellant brought suit against International Sulphur & Minerals, Inc., Frank Griggs, Don Jor-don, C. R. Bramlett, John T. Whitton, and Marie Ellen Donahue, as Independent Executrix of the Estate of A. C. Donahue, Deceased, Defendants-Appellees. The five individual Defendants filed Motions for Summary Judgment. The triаl court severed the cause of action as to the Estate of A. C. Donahue and Don Jordon and entered judgment for these two Defendants. We reverse and remand.
This case was previously appealed to this Court from a judgment on pleas of privilege styled: International Sulphur & Minerals, Inc. v. Penroc Oil Corporation,
In order for a summary judgment to be sustained, it is incumbent upon the movants to discharge the burden of affirmatively showing the absence of a material issue of fact. In reviewing the record, this Court must view the evidence in the light most favorable to the party opposing the motion and accept as true all evidence which tends to support this position. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company,
Plaintiff’s petition alleges that the Defendants acted in concert to perpetrate a fraudulent scheme for the purpose of inducing the Plaintiff to enter into an agreement for the purсhase of sulphur leases. International Sulphur & Minerals, Inc. was a corporation in which the individual Defendants оwned all of the stock and were the officers and directors. There was no detailed information in the reсord as to the corporate structure, but it appears that the individual Defendants acquired their stock оwnership from services furnished to the corporation, together with expense money and personal еfforts. In the corporate operations, Defendant Jordon testified that they all worked together, with no particular assignment being delegated to any particular person.
The Defendants Jordon and Donahue contend that they are entitled to a summary judgment in that they executed the agreement only in their corporate officer capacities, and not individually. In addition, they contend that all preliminary negotiations had bеen concluded when they arrived at the meeting to execute the agreement; that upon arrival, they mеrely executed the agreement and thus made no representations to the Plaintiff that could subject these two Defendants to liability for any fraud.
The well where the sulphur find was allegedly made was being drilled by Griggs. Each of the individual Defendants was notified about the evidence of sulphur in this well and on being so notified, they all met at the well site on Fаther’s Day to observe the drilling and production. All of the Defendants witnessed this operation and Plaintiff’s president tеstified that they all told Plaintiff that they all watched the sul-phur being drilled. Defendant Bramlett testified that at the time of the еxecution of the agreement that when Jordon and Donahue were there that one of the topics оf conversation was the amount of sulphur indicated in the well.
The testimony reveals that Jordon recovered a specimen of the sulphur produced from the Father’s Day well. This same specimen was taken by Mr. Donahuе to a laboratory for analysis to determine the percentage of sulphur content. This laboratory analysis, together with a sul-phur sample, was delivered to the Plaintiff by either Whitton, Griggs or Bramlett, or *851 all of them, when they met with the Plaintiff. To say the least, the specimen obtained by Jordon which was used by Donahue for the analysis was then used by the other three individuals to substantiate their representations to the Plaintiff.
Plaintiff’s secretary was at the meeting whеn the contract was signed. He testified that Jordon was entering into a general discussion of the fact that it loоked like there was a good sulphur find and now that they were going to get some leases from the State of Texas that they would be in an excellent position to capitalize on it. He also testified that at the time of thе execution of the agreement that he talked to Mr. Donahue who stated that he (Donahue) had seen thе sulphur drilled and it looked like a real good thing and that they could all make some money.
It is tlie law in this State that аll parties to a fraudulent transaction are responsible for the acts and representations of the others done in pursuance of a mutual understanding or in furtherance of a common plan, design or schemе. Foix v. Moeller, Tex.Civ.App.,
We conclude that the Defendants have not discharged their burden of affirmatively showing the absence of a material issue of fact. We therefore reverse the judgment of the trial Court and remand for trial.