Wachholder v. Paull , 267 S.W. 325 ( 1924 )

Appellant insists that the finding of the jury that he knew when he signed the contract of March 22, 1923, that it contained the stipulation that Paull might "sublease the whole of the building," was without testimony to support it. It is true that appellant, testifying as a witness, said that he did not read the instrument before he signed it, and did not know it contained said stipulation, and it is also true that there was no direct testimony to the contrary. But the jury were not bound by what appellant said, and, if they disbelieved him, had a right to consider the circumstances of the case in determining the issue, and also to indulge a presumption that he knew the contents of the instrument when he signed it. Railway Co. v. Dwyer, 75 Tex. 572, 12 S.W. 1001, 7 L.R.A. 478, 16 Am. St. Rep. 926; Watson v. Vansickle (Tex.Civ.App.)114 S.W. 1160; Gulf Production Co. v. Palmer (Tex.Civ.App.) 230 S.W. 1017; Janes Contracting Co. v. Home Life Accident Co. (Tex.Civ.App.)245 S.W. 1004. It is obvious, it seems to us, that if the finding specified was warranted, as we have determined it was, it is conclusive of any right in appellant to complain here, either that he was the victim of a mistake in executing the instrument as he did, or that he was induced to execute it by fraud practiced on him. 1 Black on Rescission and Cancellation, § 52, p. 122.

Appellant insists, further, that the findings of the jury that Paull intended, at the time he signed the instrument, to expend not less than $750 in improving the upper story of the building, and had not abandoned the intention at the time the suit was commenced, were not warranted by the evidence. But we think the findings not only had support in the testimony, but were demanded by a clear preponderance thereof, and therefore that there is no merit in the contention that it conclusively appeared Paull was guilty of fraud, in that he did not intend to make the improvements to the upper story of the building at the time he promised appellant to make them. And we also think there is no merit in the contention that it appeared from the testimony that Paull was not to have a right to sublet the building until after he had constructed the improvements, nor in the further contention that it appeared, because Paull had not made the improvements, that the consideration for the contract of March 22 had failed. The lease to Paull was for a term of about eight years from February 16, 1923. Nothing was said in said contract of March 22, as reduced to writing, about the contract of the improvements Paull was to make, nor the time within which he was to make them. The most appellant had a right to claim by the terms of that contract was that Paull was bound within a reasonable time from its date to make improvements to the building. If an issue was presented as to whether the time within which Paull was to make the improvements expired before the suit was commenced or not, it must be presumed here that the court found it in Paull's favor, for the burden of proving that it had expired was on appellant, and the court had a right to say he had not discharged it. There is nothing in the contract of March 22 as written which supports the contention that Paull was not to have a right to sublet the building or any part of it until after he had constructed the improvements contemplated.

Most of the other contentions presented in appellant's brief are, in effect, disposed of by what has been said. We do not think any of those not so disposed of, if sustained, would, in view of the record, require a reveral of the judgment. Therefore it is affirmed.

On Motion for Rehearing. It is insisted in the motion, as it was in appellant's brief presenting the appeal, that the Judgment was erroneous so far as it was in Paull's favor for $4,087, as the value to him of the property in controversy from the date of the judgment to the date of the expiration of his contract with appellant. We did not think it necessary to determine whether the contention should be sustained when the record was first before us, because we thought it sufficiently appeared that the judgment in that respect had been satisfied by a return of the property seized by the sheriff by virtue of the writ of sequestration sued out by appellant, and the possession of which he (appellant) had obtained by means of a replevy bond delivered to the sheriff. The evidence as to that matter was presented in an affidavit of the sheriff, made April 8, 1924, attached to a motion by appellees to dismiss appellant's appeal on the ground that the judgment appealed from had been satisfied. The material part of that affidavit was as follows:

"On the 2d of November, 1923, the plaintiff, Sig Wachholder, presented to me a replevy bond which was approved by me and said property and possession thereof was turned over to the plaintiff by me; that thereafter, to wit, on the 13th day of March, 1924, and after the trial of said cause in the district court of Hopkins county, the plaintiff, Sig Wachholder, surrendered to me, as sheriff, the control and possession of said building, and paid to me the sum of $140 as the amount of the rental value under the judgment of said court of said property for the period of time beginning with the date of replevy up to the time the property was turned back to me. That on the 13th day of March, 1924, I notified the defendants' attorneys in said suit of the surrender of the possession of the building by the plaintiff, Sig Wachholder, and of the payment to me of the rental value under the judgment in said suit, and on said date delivered possession of the property to the defendants, and paid to the defendants the amount of money which plaintiff had paid to me in settlement of said judgment, and took the receipt from defendants' attorneys, which receipt is now in my possession."

The motion to dismiss was controverted here; but appellant admitted that the property in controversy had been returned to the sheriff, as stated by the latter. We thought, and now think, that the effect of such return was to satisfy the judgment so far as it was in Paull's favor for the $4,087. Articles 7107, 7110, 7111, Vernon's Statutes. The motion to dismiss the appeal probably would have been granted, instead of being overruled as it was, if we had thought it sufficiently appeared that the judgment had been satisfied so far as it was in Paull's favor for $240, as the amount of rent it was determined he was entitled to recover of appellant for the time appellant had possession of the property under his replevy bond, and so far as it was in favor of the appellees Dan Mourgas and Will White for $150 wrongfully collected of them by appellant.

We have considered other contentions presented in the motion, and do not think any of them show error requiring a disposition of the appeal differing from that made of it.

The motion is overruled.