National Equitable Soc. of Belton v. Carpenter , 1916 Tex. App. LEXIS 311 ( 1916 )

WILLSON, G. J.

(after stating the facts as above).

[1, 2] The theory upon which the suit was brought and prosecuted was that appellee, having a right to do so, had rescinded the contract he entered into with appellant and was entitled to recover back the sum he had paid to it. Without deciding whether they were or not, it may be conceded, in disposing of the appeal, that the representations made by the agent (King) and relied upon by appellee, as he claimed, were of such a character as would have entitled him to a rescission had it appeared that King was authorized by appellant to make them on its behalf; for if the representations were of that character the judgment, nevertheless, cannot be sustained, because it appeared that King was not authorized to make them, and that appellee was chargeable .with knowledge of the fact that King exceeded his authority to act for appellant when he made them. So far as the record shows to the contrary, appellant neither authorized nor knew anything about the representations made by King. In obligating itself as it did in tbe contract it acted in utter ignorance, it seems, of tbe fact that sucb representations bad been made to appellee, and, moreover, in reliance, it seems upon bis understating fully tbe terms upon which it sold its “loan contract,” for in bis application to it appellee assured it that he bad examined its plans, bad read a printed copy of tbe kind of contract be applied for, was familiar with and understood all tbe covenants and requirements of sucb a contract, and in making tbe application did not rely upon “any statements, promise, undertaking or guarantee on tbe part of said solicitor (King) or any other person.” In tbe face of such representations as those just recited, made by appellee to appellant, it is obvious, we think, that be bad no right to rescind tbe contract appellant delivered to him, because be did in fact rely upon tbe representations made to him. To bold otherwise, it seems to us, would be to say, in effect, that appellee could induce appellant to enter into a contract with him on bis assurance that certain representations bad not been made to him, and then rescind it on tbe ground that they bad been made to him. Tbe theory upon which, it seems, appellee thought be was entitled to tbe relief he obtained, was that be made the application for tbe loan on a blank furnished to him by the agent, did not read it carefully before be signed it, and as a matter of fact when be signed it had not read nor seen a copy of one of appellant’s loan contracts. “I signed my name to the application,” be testified, “without paying much attention to what I signed.” It did not appear that be was prevented by fraud of any land practiced upon him by tbe agent from reading tbe application before be signed it. Therefore, it must be said, it did not appear that be .was in a position to claim that be was ignorant of tbe contents of tbe application. Loan Co. v. Thomas, 28 Tex. Civ. App. 379, 67 S. W. 457. If, however, it did not appear that appellee was in the attitude of having induced appellant to enter into the contract in reliance upon tbe truth of tbe representations contained in his application, we nevertheless would be of opinion tbe judgment in bis favor was unwarranted. It will be noted, as is shown in tbe statement of tbe case above, that appellee by bis writing indorsed thereupon accepted the contract tendered to him by appellant “with full understanding of all tbe terms and conditions hereof and hereto attached, all of which,” be said, “have been read by me.” One of tbe “terms and conditions” referred to as “hereto attached,” was tbe one numbered “13,” set out in tbe statement above. If appellee read that, as be said be did, in bis written acceptance of tbe contract, be must have known that King, in making tbe representations be did as to tbe time when appellant would make tbe loan, was acting outside bis authority as appellant’s agent. Testifying as a witness, however, appellee said be did not read tbe contract before be accepted it. Tbe excuse he gave for not reading it was that it “was bard for him to understand.” It does not appear in the record that be failed to read tbe contract, or have it read and explained to him, because of any act or conduct of appellant or its agent. Therefore we think it must be said that it appeared as a matter of law that notwithstanding be did not read it appellee was chargeable with knowledge of tbe contents of tbe contract at tbe time be accepted it, was bound by its terms, and hence was not entitled to tbe relief be sought. Gibson v. Brown, 24 S. W. 575; Insurance Co. v. Harris, 26 Tex. Civ. App. 537, 64 S. W. 871; Casualty Co. v. Thomas, 178 S. W. 606; Wooters v. Railway Co., 54 Tex. 294.

Tbe judgment will be reversed, and judgment will be rendered in favor of appellant.

<§u=oFor other oas.es see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

<@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes