Files v. Spencer ( 1933 )

On Rehearing.

Since our original opinion was written the Supreme Court has released an approved opinion by the Commission of Appeals in the case of Lane v. Cunningham, 58 S.W.(2d) 35, reversing the judgment of this court in the same case. Our opinion in that case is reported in 38 S.W.(2d) 906. In that case one of the false representations relied upon as constituting fraud justifying the action for rescission was that the property exchanged by Lane was unincumbered, when in fact there was an incumbrance for rent then due-upon same. Upon original hearing in that case we reversed the judgment of the trial court on the ground that there was no evidence or finding that the value of the farm parted with by Cunningham was less than the value of the things received by him. On rehearing we withdrew our original opinion and held that, since Cunningham showed that he was damaged in the exchange under the rule provided in article 4004, R. S. 1925, there was a sufficient showing of damage to support his action for rescission. It was our conclusion that, since there was provided by law a rule for the measurement of damages for fraud in dealings concerning lands, if a defrauded party in an action for rescission established that he had been damaged under the rule provided for measuring damages in suits for damages, he had discharged the burden resting upon him in a cancellation suit to show that he had suffered pecuniary damage. It was our view that the defrauded party had an election of remedies and could not be compelled to take one of them instead of the other. The Supreme Court did not agree with our conclusions, but, on the contrary, held that the rule for measuring damages in a suit at law for the recovery of damages for fraud is not the rule for determining whether or not a defrauded party has suffered damages of such nature as to obtain relief in a court of equity. In other words, a defrauded party may suffer substantial damage in law and no damage in equity.

That holding is determinative of the instant case contrary to our former determination thereof. In this case there is no showing or finding that the value of the property-parted with by Piles was greater than the value of that which he received. Absent any evidence thereof, and the burden resting upon Piles to establish his right of recovery, we cannot hold that there was any error in the judgment of the trial court. That judgment is correct, even though the conclusions of law of the trial judge may -be erroneous.

It is accordingly our order that the motion for rehearing be granted, the judgment heretofore entered herein be set aside, and that the judgment of the trial court be affirmed.