White v. Peters, 185 S.W. 659

White v. Peters

185 S.W. 659

Tex. App.

1916

Check Treatment

FLY, C. J.

Appellants sued to recover a debt alleged to be due by appellee in the sum of $2,924.85, less a credit of $35, as evidenced by three promissory notes in the sum of $974.95 each, whiсh were secured by a vendor’s lien on certain land, described as lots 4 and 5 in block 7, and lot 1, in block 8, out of the George H. Paul subdivision of the Driscoll ranch; the whole containing 62.27 acres of land. Appellee admitted appellants’ cause of action except in so far as it might be defeated in whole or in part by the facts alleged in the answеr. In the answer it was alleged that the deed to the land was never delivered to appellee, and by way of cross-action it was alleged that the land showed to appellee by appellants was that belonging to appellants, and he was told that the land to be sold to him was as good as that shown to him, which was free from swales; that he believed the statement, and the deed was executed and placed in escrow and the notes were executed and delivered to appellants, and a cash pаyment of $500 was made by appellee. It was further alleged that after-wards appellee investigated the land and found a large, deep swale thereon, covering one-half of the land; that when rain falls it is held in the swale or depression and would destroy any crops planted thereon. He prayed for the recovery of $535, money paid by him, аnd for the cancellation of contract and promissory notes, and for $311.35, damages suffered by him on account of the land not being worth as much as surrounding lands. The cause was triеd by jury, re- *660 suiting In a verdict and judgment for ap-pellee, canceling the contract and notes and in favor of appellee for .$500, with interest at 6 per cent, from January 13, 1013, and thаt appellants take nothing by their suit and pay all costs. Appellee bought the land herein described upon the representation of appellants’ agent that it was as good ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as the surrounding land. The land was not as good as the surrounding land, and that fact must have been known to the agent. A large part of the land was a swale or depression on whiсh water stood after rains. Appellee would not have bought the land had he known its true coridition and was induced to buy by the statements made by the agent.

[1,2] The first, second, third, and fourth assignmеnts are grouped, and each of them assails the second and third paragraphs of the charge of the court on the ground that the court assumed that the representаtions made by the agent of appellants to appellee were statements of facts and not the expression of an opinion. The court may have assumed thаt the representations as to the quality were made as statements of existing facts, though it does not appear so; but, if the charge had assumed that fact, it would be opеn to the attack made upon it by appellants if all the evidence had not tended to show that it was the statement of a fact. If the evidence was uncontroverted on that point, it was not error for the court to assume the existence of the fact. The only testimony as to the false representations being made was that of appellee, and his testimony shows a positive assertion on the part of the agent that the land appellee was buying was as good in every particular as the other land about it. This representation was denied by the agent, but the jury believed he made it, and the uncontroverted testimony of appellee on that point showed the statement of a fact and not merely an expression of opinion. Appellee had the right to rely upon the statement of the agent, who was presumed to know all about the land, and in whom appellee reposed implicit confidence. The agent was fully cognizant of the fact that appellee was a stranger to the land and knew that he would rely uрon his representations, which were made as to a present state of things. The agent could not have had an opinion, well founded or not, that a parcel of land with a swale or depression, which would hold water, was as good as surrounding land on which there was no such depression, and he must have intended to make the statement of a fact which he must have known would mislead. If he did not know the balance of the land was as good as that he showed to appellee, it had the same effect as though he did know. It was fraud tо positively state a thing to be true when the party making the representation did not know it to be true. Morrison v. Adoue, 76 Tex. 255, 13 S. W. 166.

It may be that if appellee had insisted on going upon the land hе could have discovered the falsity of the statement ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as to its quality, but that would be no answer to his prayer to be relieved from the contract. Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808. However, he rеlied upon the positive statement of appellants’ agent that the land, not seen by appellee, was equally as good as that part of the land shown to him. The agent could not claim that what he said was a matter of opinion, because the defect in the land was so obvious and patent that he could not have entertained such an opinion. No man could honestly give it as his opinion that a parcel of land with a depression that gathers and holds water after a rain was as good as land adjoining it upоn which there was no such depression. It was a plain statement of fact, made to deceive, or made without knowledge with which he should have possessed himself before mаking any such statement. As said in Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700:

“So far as they were concerned, it made no difference whether they were deceived through the fraudulent or innocent representations of the plaintiff as to any fact shown to be a material inducement influencing their action in making the contract. However innocent may have been the intеntion of plaintiff in making the representations, and though ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he may have been mistaken as to the locality of the land, yet, if such representations _ had in fact the effect of misleading or deceiving the defendants or influencing their conduct in a material matter, the result was in the eyes of the law * * * a perpetration of a fraud upon defendants, regаrdless of the motives of the plaintiffs.”

This was in a case in which a misrepresentation was made as to the location of a certain tract of land with reference to оther tracts.

L3] The special charge was properly refused because there was no evidence tending to show that the representation of the agent as to the quality of the land was an opinion, but if there had been the charge did not express the law as to opinions. It is not the law that the expression of an opinion will not be causе for canceling a contract made through reliance upon the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍opinion whether “erroneous or untrue” or not. The law is that, when a person makes a statement in the form of an opinion and knows of facts which make the opinion a sham and a fraud, he has really made a misrepresentation of fact. Bigelow on Estoppel, p. 636. In this case there was no expression of opinion, but a positive assertion which was shown to be untrue.

[4] There is evidence which tends to show that appellee did not rely upon his own judgment in buying the land, but that he did not see all of it and accepted the representations of the agent of appellants as true. The evidence showed that the brush on thе land was so thick that appellee and those with him could not drive over it, and, not caring to walk over it, appellee accepted what the *661 agent told him as true and upon that representation bought the land. As said ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in a quotation copied into the opinion in Labbe v. Corbett, herein cited:

“When once it is established that there has been аny fraudulent misrepresentation * ⅜ * by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by further inquiry. He has a right to retort upon his objector: ‘You, at least, who have stated what is untrue for the purpose of drawing' me into a contract, cannot accuse me of want of caution, because I relied implicitly upon your fairness and honesty.’ ”

That quotation is copied and approved in Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900. To the same effect are Benton v. Kuykendall, 160 S. W. 438; Hammel v. Benton, 162 S. W. 35; Taber v. Eyler, 162 S. W. 490; Barton v. Cox, 176 S. W. 793.

[5] The evidence was sufficient to justify the verdict. There was a sharp conflict in the evidence, but that was for the jury to determine, and. their determination of the facts cannot be disturbed.

The judgment is affirmed.