221 S.W. 267 | Tex. Comm'n App. | 1920
Hood Hill, as plaintiff, brought this suit against W. E. Taylor and H. K. Brown to recover for an alleged shortage in a tract of land conveyed by Taylor to Brown and by Brown to Hill. Upon a verdict upon special issues the trial court rendered judgment in favor of plaintiff against both defendants, which judgment was affirmed by the Court of Civil Appeals, Third District. 183 S. W. 836.
The facts in the case, which appear to be undisputed, except where noted, are substantially as follows: Prior to September 17, 1913, defendant Taylor was the owner of the tract of land in question, and through his agent, Crate Dalton, negotiated a sale of the land to defendant Brown for $11,500, $3,500 whereof was to be evidenced by a vendor’s lien note, $3,000 paid in cash, and the remaining $5,000 represented by the transfer to Taylor of the exclusive right of sale within certain territory of a patented machine known as a “Rollograph,” with which right a certain number of the machines was to be delivered. Brown was unable to raise the cash called for in the agreement, and made an arrangement with plaintiff whereby the latter agreed to become the purchaser of the land, he to assume the $3,500 note and pay the $3,000 in cash, and Brown was to have an interest of $6,000 in the land, together with the right to sell the land at such figure as would realize plaintiff’s outlay and a reasonable profit to plaintiff and Brown’s $6,000 interest therein. There does not appear to have been any writing evidencing this agreement, but it was testified to, both by Brown and Hill; the former testifying that he expected, in so far as his interest in the land was concerned, to make a trade for other land or property. The land was supposed to contain 191 acres, and was so represented by Taylor and his agent, Dalton. At the time of consummation of the trade, however, plaintiff was not satisfied as to the acreage. Whereupon Taylor and Dalton informed plaintiff that the land had been surveyed by one Freeman, a surveyor at McGregor. The latter was then called on the telephone, and he assured Hill that he had surveyed the land and that it contained 191 acres. Upon this assurance of Freeman, Hill agreed to close the trade without having a survey made. Thereupon a general warranty deed was executed by Taylor in favor of Brown, for the recited consideration of $3,500, represented by a vendor’s lien note, and $8,000 in cash. Brown, in turn, executed a general warranty deed to Hill, reciting the assumption of the $3,500 note and $9,000 in cash. Brown executed the $3,500 note; Hill gave his check to Brown for $3,000, which Brown indorsed over to Taylor. The execution of the two deeds and $3,500 note and the payment of the $3,000 in cash took place simultaneously. It later developed that there was a shortage of 36.9 acres under the 191 acres; Freeman testifying that subsequently to the purchase by Hill he made another survey, and ascertained that an error in the former survey had been made by his chain carriers. There was evidence tending to show that Brown failed to deliver some of the “Rollograph” machines contracted for, and that some of the representations
The measure of Hill’s recovery will be limited to the difference, if any, between what Taylor received for the land, that is, $6,500, represented by the vendor’s lien note and cash, plus the value of the “Rqjlo-graphs” and rights of sale thereof, and the value of the land actually conveyed by Taylor at the time of the conveyance.
We conclude that the judgments of the district court and Court of Civil Appeals should be reversed, and the cause remanded to the district court for a new trial.
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