*1
levy,
re
property
execution
and the
county to
quested
Victoria
the sheriff of
fur
action,
took no
delay
the trustee
hut
are not
ther action. Trustees
of an onerous
accept property either
unprofitable
Planters’ Oil
character.
v. Gresham
488, 106
Avary,
Tex.Civ.App.
Briggs v.
National
refused); First
(writ
S.W. 904
Lasater,
25 S.Ct.
Bank
196 U.S.
206,
ruptcy fully presented, and to refer. execution have concluded coun- levy the sheriff of Victoria judgment of Victoria ty under Davis, pe- Halsey before Bank the federal bankruptcy filed in tition exe- court, the land under the sale of by defend- levy, and the cution conveyed the sale to it all ant in error at controversy, involved in this court was in error in hold- the trial ing. The case is affirmed. et HELMICK
SHARY al. Civil of Texas. San Court of Strickland, Wilkins, Mis- Ewers & Antonio. Andrews, sion, Kelley, Campbell, Kurth & 6, 1935. Nov. Brown, Houston, Leon H. of Mis- sion, Rehearing On Motion Greer, Mission, Hill & Denied Jan. lees.
MURRAY, Justice. by appellees, instituted suit was wife, Helmick, Belle E. Helmick and Company, against Southwestern Land In- Shary corporated, and H. for rescis- John cancellation written con- three sion tracts, One with follows: 17, 1931, January dated of 19.24 acres of land county, and two with Shary- Shary, operating the name of under Nursery Company, dated
land Orchard
and March
re-
January
setting
land to
citrus
spectively,
*2
contracts;
and
the three
cancellation of
care of
annual
for the
and
trees
damages
the
the second count seeks
trees.
testimony ap-
fraud. At the
of the
close
a number
alleged
pellees
first
elected to stand
their
misrepresentations
and
statements
entirely
second
count and
count, so,
their
abandoned
en-
them,
them
which induced
sufficiency
passing
the
only
contracts,
ultimately
but
the
ter into
petition
and
support
of the
No.
First,
jury:
to the
submitted
two were
thereto,
jury’s
answer
it will
the
agent for South-
Finley,
field
H. L.
a
that
in the
necessary to
the first
consider
count
ap-
Company, had stated
Land
petition.
canal
a cement
pellees' that
was
there
appellees’ petition
The entire trend of
wa-
he could
land from which
to the
built
ter the
appellees
for rescission is
the effect that
rep-
land; second,
Finley had
that
land,
when
taxes,
buying irrigated
or were
be no
resented
discovered,
the
they
January,
that
land,
a
other than
charges on the
other
land
completed
the
canal had
year,
per
and
per
$2
acre
flat rate
$2
and the water district officials would
give
watered.
every
land was
per
time the
acre
they
that
them
assurance
to the
against
found
soon, they
ap- get
on
land
time
favorably
water
but
ground of
they had
and
concluded
been defrauded
other
ground.
pellees
to the second
as
the
Finley did not
words,
that
found
water
misrepresentation that the
make the
petition alleges,
that
land,
did
but
to the
canal had
built
December, 1931, they paid an annual
only
taxes
representation that
make a
they
they
bond tax before
involved
the land
charges
levied
defrauded;
January,
Nebraska,
that in
had been
district,
case, by
in this
a
rate,
Texas,
they
came
year,
flat
per
per acre
charge
of $2
purpose making
their home on the
the
land,
per acre for each
charge
of $2
and
when
found no canal on the
but
ques-
irrigated.
land was
time
they had been defraud
realized
charges
sub-
to the taxes
allegations
were other
of fraud
ed. There
By
No.
jury in issue
to the
mitted
during
were abandoned
trial and
jury found that
issue No.
answer
need
not submitted
false,
by their
gen
here stated. There are
not be
some
6, they found that
to issue No.
answer
petition,
allegations in
but
eral
materially
induced
such
caused W.
allegations,
specific
limited
are
sign
con-
E. Helmick to
therefore, only the facts set
in the
forth
tracts.
specific allegations can be considered.
Upon the verdict of the
petition is considered as a whole
When the
canceling the three
entered
judge
negatives
misrepre
idea
giving
herein and
involved
contracts
tax
water
sentation as
bond
of the
paid by them
sums
judgment for all
lees
was a
district
material inducement
Judgment was also
contracts.
under the
purchase,
affirmatively
oth
shows that
lien notes
all vendor’s
canceling
misrepresentations
er
induced
by appellees in connection with
executed
purchase of the land.
this transaction.
sit-
When
come
the evidence this
duly
appeal
magnified. It is
on
uation is
shown that
Company.
Shary and
29, 1931, appellee
E. Hel-
December
mick
payable
presented,
signed a check for the
Among
other
sum of $25.01
County
the order
jury’s
that the
answer
contend
Improvement
effect
Control &
No.
Water
and,
to issue
handwriting,
own
that there would be no taxes
his
wrote on
resentation
check,
“Water
charges made
water com bottom
bond tax
other
Certainly,
per year
date
per
than
acre
flat 1931.”
pany, other
$2
position
not in
to state
per
each time the land were
acre
$2
rate
materially
not discovered
bond tax.
had
irrigated,
contracts involved
into
various
enter
to
herein,
this,
Notwithstanding
Helmick testified
by pleading
supported
either
came
Texas
We
this contention.
proof.
sustain
Nebraska,
1,700
trip
miles,
of some
purpose
taking
over the care
Appellees’ petition is in two alternative
orchard, building a
on the
rescission of the
The first count seeks
home
counts.
by agents.
he ar- made
this conten
land,
residing therein. When
sustain
was tion. The
discovered there
most favorable construction
in Texas and
rived
land,
placed upon
testimony by
certain
ap-
can
on
water
(which pellees
kept
not been
is that there was a
in the
conflict
*3
testimony
he de-
appellee
tax),
the bond
as to whether or not
way
relate
no
to
ask
Helmick was
overt
repudiate the deal and
induced to commit the
cided to
that it
signing
act of
plain
makes it
the contract as
result
Helmick
attempted
arrived of fraud.
he
never
to
after
was what
jury
to
finding
to conclude
solicit
as wheth
him
here that caused
place
by
.
testified er
not
in no
the execution of the contract
He
been defrauded.
him them
tax that caused
was the
of
the bond
result
it was
way
cancellation,
finding, appellees
or that it
absence of such
Ratcliffe,
repudiate.
Ormsby
to
waived this matter.
into the decision
242,
testified
fact,
(2d)
Helmick
he and Mrs.
S.W.
both
here, if
they arrived
by
It follows that
they would
have been assured
could
they signed,
the terms of the
contract
once,
purposes at
have water
Company
the Southwestern Land
had a
have,
with
satisfied
rely
right
upon
representation
trade.
it,
effect that
not
relying upon any promise
representation
found,
mis
not contained in the written contract.
made with reference
representation was
Co.,
Bostwick v. Mutual Life Ins.
116 Wis.
constructed,
already
the fact
538,
N.W.
N.W.
67 L.R.A.
ir
capable of
facilities
705; Parker
v. Schrimsher
Hel-
purchased by the
rigating the land
165; Murray
Putman,
below
judgment
micks.
Tex.Civ.App. 517,
B. Colt
representa
theory that
upheld on the
McBurnett
S.W.
tax-materially induced
to the bond
(2d)
Lay
75 A.L.R.
Midland
land; a fact
this
the Helmicks
(2d).
8 S.W.
proven.
is not
not
which
Boyd
291 S.
(Tex.Com.App.)
Dowlin
holdings
(Tex.Civ.
The above
unnecessary
Thrasher v. Walsh
render it
to discuss other
Campbell
Jones
B. Colt
S.W.(2d)
Wheeler
judgment
below
be
02; Avery
Co. v. Harrison Co.
reversed and
here rendered that
11
Com.App.) 267 S.W.
Carson v. Hous
nothing
pay
take
all costs.
sels
Shaf
Reversed and rendered.
Brown (Tex.Civ.App.)
fer v.
59 S.W.
On Motion for Rehearing.
(2d) 854.
Appellees, in their motion for a rehear-
that,
Appellants also contend
view ing, contend that as
did not ob-
fact that the
written
except
contract which ject and
to the submission of issue-
signed contained
Helmicks
follow
6No.
on the ground that
wit, “18
ing provision,
rep
supported by
Purchaser
pleadings
hereby
evidence,
to Southwestern Land
resents
Com
should not now heard
be
herein, that no
pany,
rep
Seller
to raise this matter after
have-
of said Seller
resentative
has made
issue
them.
purchaser
promises or
agree
We do not
with this conten
inducement
an
lands or
It
definitely
tion.
has been
by
held
contract, upon
pur
enter into
which
Court,
Supreme
speaking through the Com
relies,
which is
chaser
contained here
Appeals,
of
mission
it is fundamental
in;
purchaser
rely
upon
does not
error of
court
an
submit
issue
any promise
not contain
plead.
which has not parties
this written contract.
Dominguez v. Garcia (Tex.Com.App.) 53
agree
hereto
that all
Id. (Tex.Civ.App.) 36 S.W.
they rely
concern
resentations
(2d)
lands and this
ing said
contract are herein
forth,” they
permitted
should
R.S.1925,
While article
vary
by
terms of
showing
by
contract
Leg. p.
Acts
42d
ch.
were relying
representations
1 (Vernon’s
Ann. Civ.St. art. 2190L
§
things,
Sewing
Free
Machine Co.
provides, among
expressly
was in-
that,
v. S.
Atkin
claim that
the evidence
T.
Furniture Co.
“A
an
95 A.L.R.
submission
sufficient warrant
Institute,
may
complained
for- the
American Law
Restatement
issue
verdict,
the Law
regardless
Agency,
of whether
259 and 260.
time after
§§
such issue was
the submission of
bar,
In the
ac-
case at
the contract was
n
párty,”
is clear
cepted by
any reservation
Olmsted without
party may raise the
statute that a
had to be
is insufficient
question that the evidence
and this
the authorities
case
ruled
an
warrant
submission
last above cited.
objection
made there-
jury, where no
again reviewing
After
this entire
party
*4
to,
where
jus-
the ends of
concluded that
issue be submitted
that such
by remanding
tice will
be best met
jury.
was no doubt
The law
Dominguez
rendering
here
this cause.
contrary
enactment
before the
Garcia, supra.
above-quoted part
of article
heretofore
holding
is
There
a line
decisions
aside,
far
entered herein
in so
will
not to
effective
a contract is
become
where
as it
rendered
seller,
accepted
provision
by the
until
provide
is
so as
cause
paragraph
is
18 is
contained
remanded for
new trial.
buyer. Lay v. Midland
binding
230;
Co.
(Tex.Civ.App.) 251
Kasch v. Williams
S.
816;