National Equitable Soc. of Belton v. Camp , 1916 Tex. App. LEXIS 313 ( 1916 )

Appellee in the brief remarks that:

"The suit is brought for the purpose only to recover back the money paid by the plaintiff to the society, based upon the fraudulent statements made by the agent of the society to induce plaintiff to enter into the contract and pay to the society the $100 in cash."

And it is believed that under the facts of the case it must be held that there is no ground furnished to entitle appellee to the relief sought. Appellee, according to her evidence, before signing the application and before accepting the loan contract, read over "and studied its terms," and "knew that they contained statements which said that the agent had no authority to change the terms of the written contract or make any oral agreement that was not in the written contract." Further, she discussed, she said, the terms of the contract with her son-in-law before signing the contract. Having read the contract and "studied its terms," before applying for and before accepting the contract, the appellee would be held to know that it expressly stated that the agent or solicitor had not "any authority to promise a loan in any particular time." And with this information afforded appellee, she would fully know that the statement of the solicitor that she "could get a loan within 30 days and not over 60 days at the outside" was not authorized if it conflicted with or varied the stipulation in the loan contract, which, according to her testimony, was left "with me for me to read" before acceptance and signing. Referring to the contract itself that was intended to be offered she would know that its terms explicitly stated that the loan would be made only out of the loan reserve fund of the society "whenever the accumulation is sufficient." So, from the evidence, appellee is in no position to say that she entered into and accepted the loan contract upon the faith and trust which she reposed in the statement of the agent soliciting the application for the contract. Therefore, as the appellee had, as conclusively appears, knowledge of the incorrectness or falsity of the statement of the agent, which was promissory in its nature, before she acted upon it, she has no ground for an action for damages against appellant for the agent's al-leged fraud, for she cannot be said to be deceived. 1 Clark Skyles on Agency, § 509.

And treating the action as one to rescind the contract and recover the money paid under it, the appellee may not maintain such suit under the facts, for she could not be said to have been actually misled by the statement or opinion of the agent into accepting the contract as it was written. Smith on Frauds, §§ 62 and 126 at page 144; Jackson v. Stockbridge, 29 Tex. 394, 94 Am.Dec. 290. What has been said in the case of Society v. Carpenter, supra, is decisive of this case.

The judgment is reversed, and judgment will be here rendered in favor of appellant, with all costs.