285 S.W. 949 | Tex. App. | 1926
Appellant insists the statement the jury found its agent made to appellees to induce them to execute the contract, to wit, that the expense of handling the cotton would not exceed $2 per bale, was an expression of opinion merely, and not a representation as to an existing fact. Therefore, it says, proof that the expense of handling the cotton exceeded $2 a bale did not warrant the judgment rendered, determining (as it did in effect) that because of fraud of its agent the contract was not binding on appellees.
According to the testimony of appellee C. B. Craddock as a witness, the statement of appellant's agent, Dickey, with reference to the expense of handling the cotton, on which the finding of the jury was based, was that he (Dickey) "thought it would be $1 a bale, but in no event would it exceed $2 a bale." According to the testimony of J. F. Craddock, the other appellee, Dickey's statement was that said expense "would not be over $2 a bale nor less than $1 a bale."
We think it is plain from the testimony referred to that the statement on which the jury predicated their finding in form was no more than an expression of the agent's opinion as to what would be the expense of handling the cotton; for an assertion that a thing will happen in the future necessarily is always a statement of an opinion and is never a statement of a fact. A thing must have happened before it can be a fact. Downes v. Self,
However, fraud may be predicated on a statement which purports to be only the expression of an opinion entertained, if the person expressing the opinion in reality does not entertain it, but falsely pretends he does for the purpose of deceiving another person. 12 R.C.L. 247 et seq.; 26 C.J. 1079 et seq.; Simkins on Equity, 531. Hence this court would have to assume in support of the judgment, if there was testimony authorizing it, that the trial court found the agent did not in fact entertain the opinion he expressed. Article 1985, Vernon's Statutes. But there seems to be no such testimony in the record sent to this court. On the contrary, the testimony in that record indicates that the agent honestly entertained the opinion he expressed.
And so fraud may be predicated upon a statement which otherwise would not be treated as actionable, where the party making it "does not state it as the mere expression of his own opinion, but affirms it as an existing fact material to the transaction so that the other party may reasonably treat it as a fact and rely and act upon it as such." 2 Pomeroy's Eq. Jur. § 878. We do not think this is that kind of a case. The statement of appellant's agent in question was made pending and in contemplation of the organization of the appellant association, before cotton of any of its members had been handled under its plan, and when the cost of such handling necessarily was conjectural — a fact which in the nature of things necessarily must have been known to appellees. As we construe the statement, as testified to by appellees, it was not, and under the circumstances of the case reasonably could not have been, understood by appellees to be an assertion as to an existing fact, but must have been understood by them as a mere expression by Dickey of his opinion as to the expense to be incurred in handling cotton under the contemplated plan.
The amount appellant is entitled to recover of appellees because of their breach of the contract does not appear in the record in such a way as to authorize us, after reversing the judgment of the court below, to here render judgment in appellant's favor. Therefore the cause will be remanded for another trial. *951
