Harlan v. Acme Sanitary Flooring , 240 S.W. 623 ( 1922 )

I do not agree to all that is said in the majority opinion but will concur in the order reversing and remanding generally.

Actionable fraud on the part of Heineman and Phillips was shown which would entitle plaintiffs to rescind or to recover damages for the deceit. No fraudulent representation on the part of Albright was shown, but it was shown that he availed himself of the fraud committed by Heineman and Phillips, whereby he adopted and made the same his own.

As to the corporation, I doubt if a cause of action against it is shown by the evidence. A corporation is not liable for false representations concerning it made by its officers and stockholders for the purpose of selling their own individual stock. It rather seems to me that the evidence presents that state of facts as to the corporation; but the testimony is so confusing that it is difficult, if not impossible, to definitely determine this matter, and, to the end that the facts may be fully developed, and liability fixed whereever it may properly lie, I concur in reversing as to the corporation also. See Ry. Co. v. Guzman (Tex.Civ.App.) 214 S.W. 628, and cases there cited. In that case it was said:

"Upon the record we would be authorized to affirm the judgment as to the Mine Smelter Company, but, in cases such as is here presented, this court may affirm as to one defendant and reverse as to the other, or in its discretion the case may be reversed generally as to all defendants."

For the reasons indicated I concur in the reversal of the case generally as to the defendants Heineman, Albright, and the company.